On January 22, 2007, the Commission des lésions professionnelles (the “Board”) handed down a decision in Harvey et Brasserie Labatt ltée(1) further to a motion for revocation filed by the employer against a decision rendered by a first commissioner.
This decision deals with the reasons that may be invoked for revoking a decision when the first commissioner fails to give reasons for his decision, as well as the power of the Board to issue a stay of proceedings in connection with a motion for revocation so the employee may continue to receive benefits pending another hearing.
In this case, a temporary driver employed by Labatt Breweries consulted his doctor who diagnosed synovitus and acromioclavicular osteoarthritis in the right shoulder. According to the first commissioner, [Translation] “[...] the gestures described with respect to the stature of the employee allow to conclude that the duties of the employee involved specific risks which lead to the injury for which the employee is receiving treatment and care.”(2) Accordingly, the commissioner held that the employee should benefit from the application of section 30 of the Act respecting industrial accidents and occupational diseases(3), which reads as follows:
“A worker having contracted a disease not listed in Schedule I out of or in the course of employment and not as a result of an industrial accident or of an injury or disease caused by such an accident is considered to have contracted an occupational disease if he satisfies the Commission that his disease is characteristic of work he has done or is directly related to the risks peculiar to that work.”
The employer therefore asked that this decision be revoked based on section 429.56 (3) of the Act, which gives the Board the power to review and which reads as follows:
“The board, on an application, may review or revoke any decision or order it has made [...]
3) where a substantive or procedural defect is of a nature likely to invalidate the decision [...]”
According to the employer, the first commissioner committed a clear and overriding error in that he disregarded certain testimony without giving his reasons for so doing, which constitutes a lack of reasons.
The employee, on the other hand, [Translation] “[...] believes that the decision shows that the first commissioner took a position supported by the evidence submitted. The fact that a decision is incomplete and not perfectly drafted does not render it null and void.”(4)
Before examining the grounds for revoking the decision, the Board explained that great restraint must be shown when one is asked to review a decision:
[Translation] “The impugned decision may not be reviewed or revoked unless it is shown that the conclusion which the first commissioner arrived at is based on an appreciation of the facts presented or an application of the rule of law which is clearly erroneous and such error is a deciding factor.”(5)
In this case, given the lack of reasons for the decision rendered by the first commissioner, the Board revoked the decision.
Lack of reasons
The first commissioner rendered a brief decision, giving no explanation as to why he set aside the report of the doctor of the employer, who had explained, among other things, [Translation] “[that] since 1990 no case of acromioclavicular osteoarthritis has been recognized as being related to the work of a deliveryman.”(6) He also set aside the literature submitted by the doctor, according to which [Translation] “[...] there is no relationship between acromioclavicular osteoarthritis and tasks such as those of an employee who delivers cases of beer.”(7)
The Board explained that [Translation] “[...] although a commissioner is not required to restate in detail each piece of evidence or accept expert evidence, he must nonetheless explain why he is setting aside testimony rendered and evidence submitted.”(8)
Accordingly, [Translation] “[t]he fact that there is a sentence in the decision mentioning that a commissioner has examined all the documentary evidence and that he has considered the arguments of the parties does not constitute reasons.”(9) The Board also relied on the decision in Emballage Workman inc. (Multisac) et Martinez et CSST(10), which discussed the use of the terms [Translation] “studied all the documentary evidence” and “arguments of the parties”, stating: [Translation] “This is general wording which underlies virtually all decisions and which constitutes a kind of preamble to the description of the reasons of the commissioner.”(11)
In the same case, the Board stated:
[Translation] “Reading the decision does not allow us to understand the decision-making process of the commissioner and the reasoning behind the decision. The commissioner merely wrote a conclusion, without explaining himself. It is impossible to understand the basis for his decision. He held that [Translation] “the evidence showed” that the employment was suitable without referring to any evidence, without analysing the inconsistent facts and without setting out the elements which formed the basis for his decision.
Although it was not necessary to comment on all the facts submitted into evidence or to decide on all the arguments the parties presented to him, he nonetheless had to give reasons for his decision, albeit briefly.”(12)
The Board also relied on Thifault et Commission des lésions professionnelles et CSST(13), in which the Superior Court explained the following:
[Translation] “After hearing a witness, the court may set aside his testimony if it does not consider it credible, but it must give reasons in its decision. If the decision does not contain such reasons, we must conclude that the court found the witnesses credible and that it took this evidence into consideration in coming to its decision.”(14)
The Board then noted that, in reading the first decision, [Translation] “[...] it is impossible to know what steps the first commissioner took to come to his conclusions.” (15) It therefore allowed the motion for revocation, as this lack of reasons constituted a defect which invalidates the decision of the first commissioner.
This decision reiterated the importance of the reasons for a decision as, if reasons are not given, it is impossible to determine what evidence was taken into consideration by the decision-maker. The requirement to give clear reasons also finds support in section 429.50 of the Act, which provides that:
“429.50 Every decision by the board must be in writing, give the reasons on which it is based, be signed and be notified to the parties and to the Commission.
[...]” (emphasis added)
Stay of proceedings
During the hearing, the employee asked that, if the Board revoked the decision, a stay of proceedings be issued to [Translation] “[...] maintain payment of the income replacement benefit until the case is heard by another commissioner.”(16)
Subsection 378(2) of the Act sets out the various powers of the Board and its commissioners:
“They are also vested with all the powers necessary for the performance of their duties; they may, in particular, make any order they consider appropriate to safeguard the rights of the parties.”
The Board quoted several decisions which held that the it does not have jurisdiction to issue stays of proceedings or to suspend the enforcement of decisions.
In Giben Canada inc. and Industries Okaply ltée(17), the Board dismissed a motion for a stay of proceedings regarding a decision rendered by a CSST inspector. In its view, the power to issue orders set out in subsection 378(2) of the Act [Translation] “[...] does not allow the Board to order the CSST to suspend enforcement of a decision it has rendered [...] as an explicit legislative enabling power is necessary to allow such an order to be issued [...].”(18) Given the lack of inherent jurisdiction of the Board, there must be an explicit legislative power enabling a decision-maker to issue an order which would affect the decisionmaking process of a lower body(19).
The Board came to the same conclusion in Jean et Service entretien Distinction inc.(20), in which it explained [Translation] “[...] that the general power to issue orders granted to the Board cannot be used to stay the execution of a decision.”(21)
In 1989 the CALP had also held that [Translation] “[...] the Appeal Commission does not have a general power to order a stay of proceedings.”(22)
Accordingly, in the decision being examined, the Board reiterated that it only has statutory powers, not the inherent powers of a Superior Court which authorize the Court to issue appropriate orders [Translation] “at any time and on all matters”.
Conclusion
The Harvey case restates the need and importance for persons involved in a judicial or administrative process to know and understand the basis for decisions rendered concerning them and to contest them if the reasons seem inadequate.
When medical evidence is submitted to the Board, the commissioner must give reasons explaining why such evidence should be rejected. This is a fundamental right for all parties appearing before the Board.
Finally, if a first decision is attacked, the Harvey case reminds us that when the Board holds that it is null and void, it cannot issue an order to extend it until the case has been re-heard. |