3.2: How to start an action

Case Summary

Mr. Patrus, a manual labourer, lost his dominant left hand while operating a saw at work. The Workers’ Compensation Board (“WCB”) assessed him for temporary economic loss under the WCB compensation regime. The Decision Review Body of the WCB adjusted Mr. Patrus’ temporary economic loss income based on the earnings of a video store clerk.

The Appeals Commission upheld the WCB’s findings that Mr. Patrus was employable, but rejected that Mr. Patrus was employable as a video store clerk. They remitted the matter back to the WCB, directing it to identify a suitable position for Mr. Patrus. Mr. Patrus appealed the Appeals Commission’s Decision to the Court of Queen’s Bench.

The presiding Justice at the Court of Queen’s Bench held that Mr. Patrus had selected the proper avenue in appealing the matter. Mr. Patrus’ grounds of Appeal raised extricable questions of law and were not suitable for Judicial Review. The Court held that even if the Appeal involved only factual issues, the saving provision in Rule 3.2(6) of the Rules of Court would apply to avoid denial of a remedy on the basis of a technical defect. Further, the presiding Queen’s Bench Justice noted that he would have reached the same decision even if it was a Judicial Review. The Queen’s Bench Justice, after reviewing the Appeal Commission’s Decision, concluded that it would be appropriate to restore Mr. Patrus’ benefits to the temporary total disability level and referred the matter back to the Appeal Commission for determination of Mr. Patrus’ employability.

WCB appealed to the Court of Appeal, asserting that the Queen’s Bench Justice lacked jurisdiction to hear the Appeal because Mr. Patrus’ complaints with the Appeal Commission’s Decision did not raise issues of law or jurisdiction. WCB claimed that the questions before the Queen’s Bench Justice were questions of mixed fact and law from which no legal issues could be extricated.

The Court of Appeal specifically noted that the Queen’s Bench Justice’s statements that he would have invoked the saving provision in Rule 3.2(6) had he found a technical defect in that proceeding, and that he would have come to the same conclusion even if there had been a Judicial Review. The Court of Appeal held that the form of commencement was not relevant, as no one was prejudiced by the fact that the proceedings were commenced as an Appeal and, as such, the Queen’s Bench Justice had jurisdiction to hear the Appeal.

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