ZAROOBEN v WORKERS' COMPENSATION BOARD, 2021 ABQB 232
3.15: Originating application for judicial review
3.2: How to start an action
3.22: Evidence on judicial review
3.8: Originating applications and associated evidence
This was an Originating Application for Judicial Review/a Statutory Appeal of the Appeals Commission of the Workers Compensation Board of Alberta. Justice Loparco began by addressing a preliminary procedural issue, namely, whether the proceeding was properly filed as either a Judicial Review or a Statutory Appeal.
The Applicant had filed an Originating Application stating that it was a “statutory/judicial appeal”. Her Ladyship noted that section 13.4 of the Workers' Compensation Act, RSA 2000, c W-15 (the “Act”) sets out the statutory process for an Appeal of a decision of the Appeals Commission, and it required that an Appeal be commenced by an Application.
Justice Loparco noted that the relevant provisions of the Rules included Rules 3.2, 3.8, 3.15 and 3.22. The Applicant had filed their Appeal and Judicial Review as an Originating Application under Rule 3.8 using Form 7 and listed the decision and record of proceedings as evidence in support. Her Ladyship noted that if it was intended to be a Statutory Appeal pursuant to the Act, it should have been filed under Rule 3.2 using Form 5. If it was intended to be a Judicial Review, it should have been filed using Form 7 and served on the Minister of Justice and Solicitor General. It was filed using Form 7 but was not served on the Minister of Justice and Solicitor General. The pleadings therefore did not meet the requirements of either process and the question was whether the Court could accept the pleading as both a Judicial Review as well as a Statutory Appeal.
Her Ladyship noted that prior to the decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavlilov”) it was common for Applicants with claims under the Act to seek Judicial Review and a Statutory Appeal. In Vavilov the Supreme Court of Canada made it clear that the standard of review for Statutory Appeals was distinct from that of a Judicial Review, however it was possible to proceed with a Judicial Review and Statutory Appeal at the same time. Further, the Applicant commenced their Originating Application three days before the publication of Vavilov. Justice Loparco noted that the Statutory Appeal process under section 13.4 of the Act limited the process to questions of law or jurisdiction, and that the right of Appeal under the Act did not preclude the Applicant from bringing an Originating Application for Judicial Review.
Her Ladyship was satisfied that the Court could hear both a Statutory Appeal and Judicial Review in the proceeding. Justice Loparco noted that Rule 3.2(6) allowed the Court to make a procedural Order to correct and continue a proceeding if an Action was started in one form when it should have been started in another. Accordingly, Her Ladyship made an Order that the proceeding should be treated as though the Applicant had filed an Originating Application seeking both a Statutory Appeal and a Judicial Review and noted that future claims before the Court that raise a Statutory Appeal and Judicial Review must be properly distinguished in the pleadings and served on the “the Minister of Justice and Solicitor General or the Attorney General for Canada, or both, as the circumstances require” in order to comply with Rule 3.15.
Ultimately, after dealing with the procedural issue, Justice Loparco found that the Appeals Commission’s decision was unreasonable and remitted the matter to the Appeals Commission for reconsideration.View CanLII Details