3.2: How to start an action

Case Summary

The Applicant, Bruce Tompkins, was struck and injured by equipment while working on an oil drilling rig in 1975. At that time, he claimed workers’ compensation and was paid total temporary disability benefits for nine days and subsequently returned to work. In the early 2000s, he requested that the Workers Compensation Board (“WCB”) reopen his claim. When his request was denied, the Applicant applied for review by the Decision Review Body (“DRB”). The DRB denied the appeal and the Applicant then appealed to the Appeals Commission (“AC”). When this appeal was also denied, the Applicant requested reconsideration by the AC of its decision. The AC denied the request for reconsideration and the Applicant applied for Judicial Review of the AC’s decision by way of Originating Notice, dated November 26, 2006.

A preliminary issue brought before the Court was whether the Action was properly brought in the context of a Judicial Review. Gates J. noted that the Applicant complained in the Originating Notice that the AC did not properly apply the law to the facts of the case. These complaints were characterized as questions of mixed fact and law, which could be considered by the Court in the context of a Judicial Review.

Gates J. briefly discussed the jurisdiction of the Court to cure technical defaults in order to continue proceedings. Referring to Buckley v Entz Estate, 2007 ABCA 7 (a WCB case) Gates J. noted the possibility of “recasting” the proceedings under former Rule 753.16 (now Rule 3.2(6)) to allow the Court to convert pleadings where the parties chose the wrong type of proceeding. Gates J. also referred to Patrus v Alberta (Workers’ Compensation Board, Appeals Commission), 2011 ABQB 523, and noted that Rule 3.2(6) could be used in certain circumstances to avoid denial of a remedy on the basis of a technical defect.

Gates J. did not accept the WCB’s contention that the issues raised by the Applicant were not properly before the Court. The Applicant sought relief from the Court on the basis of alleged errors on the part of the AC in dismissing his claim and Gates J. stated that even assuming that the application for Judicial Review erroneously characterized some of the questions as issues of law, the Court still had jurisdiction to hear the matter.

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