Update, February 12 at 14:50 EDM: Here is a run-down of those issues in R v Barton, 2017 ABCA 216 upon which some light has been shed in the oral hearing transcript fragments previously released to the defence and which have been published here: https://bottoslaw.ca/wp-content/uploads/2017/09/August-17-2017-Letter-from-Court-of-Appeal.pdf I have previously discussed the case here: https://marnietunay2.wordpress.com/2017/07/20/were-the-dice-loaded-in-r-v-barton-2017-abca-216/ but am switching now over to this page, where I examine cases and analyze them. ‘The Judgment’ here refers to the case R v Barton 2017 ABCA 216, and the transcript fragments refer to the PDF link I’ve given above from the defense counsel’s website here: https://bottoslaw.ca/letter-re-alberta-court-appeals-ruling-r-v-barton/
From the Judgment: “ The trial judge properly instructed the jurors that they may believe all, none or part of Barton’s evidence. The trial judge also provided the jury with Barton’s justifications for acting and speaking as he did. However, the jurors were never instructed – as they should have been – that Barton’s after the fact conduct could bear on his credibility, whether or not they also found it showed a consciousness of guilt. The jurors were also not instructed – as they should have been – that they could take Barton’s admitted lies into account when determining whether they believed any part of Barton’s testimony. Further, the jury instructions never mentioned – as they should have done – that Barton admitted to making various statements, then admitted they were false and that he had lied in them. These key omissions were not remedied in any other part of the charge. Indeed, the jury instructions referred repeatedly – and wrongly – to Barton’s testimony as given, implying that the jury should evaluate critical legal issues based solely on what Barton testified happened. This too was an error of law.31 The jurors should have been instructed that they were entitled to decide what inferences were likely based on evidence they found as fact.
31 We address this issue in more detail later in these Reasons.”
from the transcript fragments: p. 117 [tenth page in Adobe Reader] starting at line 1 where Chief Justice Fraser is speaking: “… I asked about the post conduct in the context of charging and saying you could use that for accident but not for anything else… where there was a suggestion made by the judge that you could take into account the post-offence conduct to find that it was an accident, but you couldn’t take it into account to convict him of an offence. And I’m just basically saying, is that really correct, or are both wrong? And can you use it only for purposes of credibility?” [Emphasis mine.]
From the Judgment:
- Instructions on Reasonable Steps Were Inadequate
 The trial judge did tell the jury that the defence was only available if Barton took reasonable steps in the circumstances known to him to ascertain her consent. But the jury needed to know what s 273.2(b) of the Code required of them. Under this section, mistaken belief in consent is not a defence where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” This requires the application of a “quasi-objective test”. The jury would first need to decide the circumstances known to Barton and then decide on an objective basis what reasonable steps should have been taken to ascertain consent.
 Reasonable steps depend on the circumstances and these may be as many and varied as the cases in which the issue arises. That said, we reject the view that reasonable steps can equal no steps whatsoever. An accused’s asking himself whether he should take a reasonable step is not itself a reasonable step. To suggest that reasonable steps means no steps flies in the face of the definition of “consent” under s 273.1(1) and Parliament’s requirement under s 273.2(b) that an accused must have taken reasonable steps to ascertain consent in order to advance the defence of mistaken belief in consent. This idea resurrects yet again the debunked theory that unless and until a woman objects to, or resists, sexual activity, she is consenting to that activity.
“ It also assumes that all women in Canada, single, married or in an intimate relationship, are walking around this country – whether in their home, on a date, at work, at a restaurant or wherever – in a state of continuous consent to sexual activity unless and until they say “no”. This is not the law. As for those who question, as defence counsel did here, “what’s a man to do”, the answer can be summed up in one word: “ask”.116 This is hardly an onerous obligation to impose on anyone intent on engaging in sexual activity with another person. It is respectful of sexual autonomy and human dignity. It is also consistent with the equality rights of women.117
116 We are not suggesting that this need be done literally. There are ways to ask that involve sending a clear message through other than express words. But the point is that there be an “ask”.
117 Those equality rights under the Charter are also grounded in Canada’s international human rights obligations: see Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 18 December 1979, Can T S 1982 No 31 (entered into force 3 September 1981, ratification by Canada 9 January 1982); Declaration on the Elimination of Violence Against Women, 20 December 1993, A/RES/48/104; Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, 15 October 1999, A/RES/54/4.”
From the Transcript Fragments: 100 – 101 [p. 4 – 5 in AR reader] Bottos outlines steps taken by his client to obtain consent to sexual acts, which is the consent discussed in S. 258 – 260 of the Judgment where the Court makes the innuendo that Bottos had presented nothing in terms of consent except to ask “what’s a man to do?” It’s an incredibly defamatory three paragraphs in that Judgment, in my opinion, defamatory by way of innuendo.
Moreover, J. Fraser appears to me to have conceded in several places even in the fragments of the court transcript that the Appeal Court judges had received information from Bottos to an adequate degree as to the steps taken by his client to obtain consent to sexual acts at the least, for example line 30 on page 101 of the transcript [p. 5 in AR] where she says in connection to the steps to obtain consent which Bottos had just outlined again in the oral hearing: “…. Okay. But if you exceeded the scope of the consent, you did…” But this goes to show, in contradistinction to what the Judges strongly implied in R v Barton, 2017 ABCA 216 in para. 258 – 260 [see above], that Bottos had indeed presented adequate information as to the steps taken by his client to obtain consent to sexual activity, and that it was now a question of whether or not consent had been exceeded. But there’s more. On page 177 of the transcript fragments [p. 8 in AR] Justice Fraser says at lines 29 – 33: “Okay. I think that we’ve probably gone through enough of this in terms of the reasonable steps. I take it that the reasonable steps – I asked this yesterday – had been discussed at the time to decide whether there was an air of reality or was it? Did anybody make an argument that there was no air of reality here?”
Justice Sheilah Martin then states: “No, the Crown –“ at which point she is cut off by Justice Fraser, who finishes Martin’s thought for her: “No. The Crown conceded there was there was an air of reality.”
Also, Bottos never said “what’s a man to do?” See page 100 of the transcript fragments, line 35, which shows not only that he was misquoted, but that the quote was taken out of context, and chopped to exclude the part of the quote which indicated that Bottos had given information as to the steps outlined to obtain consent, namely, the last part of the sentence “… what’s a man to think at this point?”
Page 116 of the transcript fragments [p. 9] also has content that is interesting in other respects: Justice Sheilah Martin says, starting at line 7: “No, I’m talking consent. I agree with you. Was it callous? Yes. Was it unfair? Yeah. But does that have any evidentiary connection with what that consent – if he says it existed – to, like, I’m finding I can’t really think about that clearly, and so I’m not asking you to set a trap. I’m asking you because I’m having trouble figuring out what that might be and what that might suggest about anything. And maybe the answer is nothing, but I’m going to let you think about it because I have been thinking about it and I can’t come to a spot.”
Seriously, that’s what she said. Go look it up.
For starters, I can’t figure out what Justice Martin was even asking Dino Bottos to respond to in that paragraph. I think that is one of the most incoherent lines of questioning I’ve ever read in my life. I look at that and I’m thinking: “I’m an honest person who pays my taxes. Is this what I deserve for judges, for my tax dollars?”
Secondly, why did Justice Martin feel the need to say: “I’m not asking you to set a trap.” Is there not a presumption in the Courts that judges are not there to set traps for lawyers? And what does it say about a person who volunteers a rebuttal of malice that has not been asked for? By way of illustration, try going up to customs at the airport and telling them before anyone asks you that you’re not carrying anything illegal. I’m pretty sure that the response is going to be to flag you to secondary. Because they’re going to be wondering why you’ve answered a question you hadn’t been asked yet.
Also on page 116 of the transcript fragments, Chief Justice Catherine Fraser puts words into the mouths of both of the other judges. At lines 27 – 28 Justice Watson says: “Shed some light on his understanding of what the consent was.”
At line 30 Justice Fraser says: “What the contract was.” At line 34 Justice Fraser goes on to say: “Well, that’s what it is. I mean, that’s what My Lady Martin was asking, is what was the contract?…” But “My Lady Martin” had said nothing of the kind. That’s probably the one thing that is clear from Ms. Martin’s incoherent questioning at the top of the same page.
I would call putting words into the mouths of the other judges an over-step of Justice Fraser’s bounds of authority in that courtroom.
More to come on the Barton Appeal issues, soon I hope.
Update, September 23 at 23:59 EDM: With respect to the recent Alberta Court of Appeal decision to throw out a jury verdict of not-guilty and order a new trial: https://marnietunay2.wordpress.com/2017/07/20/were-the-dice-loaded-in-r-v-barton-2017-abca-216/ the Court of Appeal has refused to provide the defense lawyer in that case, Dino Bottos, with more than a few pages of a transcript of the Appeal hearings, so that he can prepare to appeal the Court’s decision: http://edmontonjournal.com/news/crime/paula-simons-court-of-no-record-albertas-court-of-appeal-defies-open-court-tradition Mr. Bottos has alleged that he was ambushed and misquoted by that Court, and that his legal arguments were misconstrued; so their refusal to provide him with most of the transcript makes it appear that they are on the defensive, got something to hide, in my opinion. Should be interesting to see the legal basis for the decision to give him fourteen pages, but not the rest of the transcript.
Two of the Alberta Court of Appeals Judgments analyzed on this page, R. v. Crazyboy, 2012 ABCA 228 (the first judgment), and Patrus v Alberta (Workers’ Compensation Board), 2014 ABCA 117, (the fourth judgment), both stand out to my mind for their remarkably inaccurate representations of the original judge’s “reasons for judgment,” Crazyboy quite blatantly [and unfairly] so, and Patrus rather more subtly.
In the second Judgment discussed, 321665 Alberta Ltd. v. Husky Oil Operations Ltd., 2013 ABCA 221, the Court of Appeals ruled that Husky Oil Operations Ltd. and Exxonmobil Canada Ltd. [formerly known as Mobil Oil Canada Ltd.] had acted in good faith when they demanded that a bidder on a critical tender provide them with confidential business data – and in front of a rival bidder, moreover.
The third Judgment, Shuchuk v. Alberta (Workers’ Compensation Board), 2012 ABCA 50, in effect handed back to the Worker’s Compensation Board Appeals Commission precisely the same power of decision, in respect of the same case, which had been taken away from it both in a previous Court of Appeal decision as well as in a Queen’s Bench decision, while purportedly doing something else entirely.
In addition to the Judgments on this page, I have also commented on another Alberta Court of Appeals decision, Dalla Lana v University of Alberta, 2013 ABCA 327 in a separate post here: https://marnietunay2.wordpress.com/2013/10/04/dalla-lana-v-university-of-alberta-2013-abca-327/ See also the September 01, 2014 update on Dalla Lana regarding the standard of proof. And, my December 05, 2014 post on the promotion to police sergeant of Edmonton cop and convicted-criminal Mike Wasylyshen: https://marnietunay2.wordpress.com/2014/12/05/edmonton-police-service-and-mike-wasylyshens-promotion/
In R. v. Crazyboy, 2012 ABCA 228
the Alberta Court of Appeals correctly points out that the trial judge erred in giving the offender credit for pleading guilty and for not using violence; (the charges were obstruction of justice and disobeying a court order).
But, then the Memorandum of Judgment, written by “The Honourable Mr. Justice Peter Martin” and “concurred in by “The Honourable Madam Justice Constant Hunt,” goes on to say at  “ We note as well that the trial judge seemed to think that the respondent was automatically entitled to a discounted sentence because of his aboriginal ancestry.”
I checked out both the trial judgment: https://www.canlii.org/en/ab/abpc/doc/2011/2011abpc380/2011abpc380.html
as well as the trial judge’s “reasons for judgment:” https://www.canlii.org/en/ab/abpc/doc/2011/2011abpc369/2011abpc369.html
and what the trial judge actually says about the offender’s background is this:
“4. I cannot ignore the Accused’s dysfunctional family background and upbringing. According to the PPR, the writer noted that he has undergone a chaotic developmental history characterized by exposure to family violence, familial substance abuse, and relative instability due to frequent changes in geographical location. He has significant cognitive limitations that may limit his ability to process information and a history of academic underachievement. He has a long history of numerous and varied legal difficulties back to his youth and a pattern of difficulty abiding by community conditions. His history of failed common law relationships speaks for itself.”
And, I would just like anyone to show me where, in the trial judge’s “reasons for sentence,” it says that he considered the fact of the offender’s aboriginal ancestry to be a mitigating factor in and of itself…
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Update September 23, 2017 at 23:57 EDM: Husky Oil, Calgary, is still struggling with accountability and safety issues, I see: http://calgaryherald.com/business/10000-fine-for-husky-energy-subsidiary-after-worker-hit-by-truck
With respect to 321665 Alberta Ltd. v. Husky Oil Operations Ltd., 2013 ABCA 221 https://www.canlii.org/en/ab/abca/doc/2013/2013abca221/2013abca221.pdf
I would normally leave oil-field judgments to the judges, because they are usually very complex and technical, involving reams of data I don’t personally have access to; but the above one caught my attention right way with its finding that:
Para.  “… the relevant legislative provisions have since been amended, such that the appellants’ conduct would no longer be characterized as criminal in nature.” which I read again in conjunction with para.  “The appeal is allowed and the action is dismissed.”
Uhhhmm say what??? Are the honourable judges saying that the appellants’ conduct Was “criminal in nature” at the time it happened – but said judges are still finding in the appellants’ favor? So then I decided to take a closer look at the judgment:
2.  “In addition, it remains unclear as to whether Husky and Mobil profited by their conduct; their stated goal was to reduce annual costs for fluid transportation by $600,000, but there is no evidence to show whether they saved any expense by entering into an ex-clusive arrangement with Cardusty. In other words, we are not convinced that an award of punitive damages was required to ensure that the appellants’ do not profit by their unlawful conduct.”
In other words, the finding that Husky and Exxonmobil (formerly known as Mobil) didn’t profit from their actions went to show that they didn’t act maliciously. But the appellants’ whole defense in the original lawsuit revolved around the idea that the intent of their agreement to use one liquid hauler was to cut costs. Still quoting from the appeal here:
 “Kolt’s position is that the Act precluded Husky and Mobil from restructuring their services by entering into an exclusive arrangement with Cardusty (or Kolt, for that mat-ter) for their joint operations. We disagree. We can discern no reason why Husky and Mobil should not be permitted to rationalize their operations, particularly when the purpose was to increase efficiencies and reduce unnecessary costs. To find otherwise would necessarily undermine the competitive nature of Husky and Mobil’s operations by driving up their costs, and create unnecessary inefficiencies in a highly competitive industry that attempts to efficiently and effectively develop and produce scarce, natural resources. That cannot have been the intent of the Act. We simply do not accept that Husky and Mobil were bound to continue their previous practice of dividing up their fluid hauling requirements between Kolt and Cardusty, to their detriment.”
So their purpose [and rationale for the impugned agreement to use only one liquid hauler] was to save money by increasing efficiencies, but there is “no evidence to show whether they saved any expense.” Really?? So, are Husky and Exxonmobil totally incompetent, or what?
3.  “In any case, it is clear that Kolt was provided a fair opportunity to compete for the work and it did not distinguish itself from Cardusty, its main competitor. Indeed, Kolt’s complaint is not that it was ignored during the evaluation process, but that the assessment went too far. The suggestion is that Kolt was required to disclose details of its operations, including its profit margins, which Kolt felt pressured to provide. The propriety of such questions aside, there is no evidence to suggest that Husky and Mobil attempted to reduce the suppliers’ profit margins, the prices they charged, or the volume of work they would provide. While these elements are not necessarily required to demonstrate anti-compet-itive behaviour, their absence supports our view that the evaluation process was genuine.”
In other words, Husky and Mobil were saying, in their request for Kolt’s most private company data, “Please don’t take the request from your biggest clients to hand over your profit margin and other private company data as being pressure of any kind to change that profit margin.” Yeah, right….
4.  “Aside from making Kolt’s representative uncomfortable by requesting particulars of its operations in front of a competitor, Husky and Mobil’s conduct reflects normal corporate practice, and lacks any malevolent or malicious intent. Although Kolt may have felt that it would receive negative repercussions if it failed to disclose the intimate financial details of its operations, we note that Cardusty did not reveal its financial details, and it was not penalized for that.”
In fact, that Cardusty wasn’t penalized proves nothing, if the ultimate purpose of Husky and Mobil’s joint action was, ultimately, as the respondent alleged in the original suit, to lessen competition by assigning the total fluid hauling service business to Cardusty.
5.  “In any case, it is clear that Kolt was provided a fair opportunity to compete for the work and it did not distinguish itself from Cardusty, its main competitor…”
I really don’t agree that demanding business data any reasonable person would consider to be highly confidential from a supplier as a condition of being considered constitutes a “fair opportunity.”
6. 6.  “Aside from making Kolt’s representative uncomfortable by requesting particu-lars of its operations in front of a competitor, Husky and Mobil’s conduct reflects normal corporate practice, and lacks any malevolent or malicious intent.”
Well, that’s quite the spin from the Honourable Mr. Justices Peter Martin, Jack Watson and J.D. Bruce McDonald on the fact that Husky and Mobil asked for what reasonable people would call “highly confidential business data:” “making Kolt’s representative uncomfortable by requesting particulars of its operations in front of a competitor…” The suggestion is that the only problem with the request was that it happened in front of a competitor. The trial judge called it an “abusive request:”
from para.  in the above appeal: “He also noted that the appellants did not consider other, non-criminal avenues, such as implementing a competitive bid system or a common dispatch system, and they instead abusively and insensitively requested full disclosure of Kolt’s business operations including their profit margin.”
But of course if the appeal judges had used the trial judge’s word ‘abusive’ in reference to the impugned request, then they could hardly have gone on to find a lack of malice, could they, because in administrative law, ‘abusive’ tends to go a long way towards showing the presence of malice at law…
And this was just the fast version of what’s wrong with that judgment, in my opinion, just what was fairly easy and obvious to see….. I think it’s fairly clear that 321665 Alberta Ltd. v. Husky Oil Operations Ltd., 2013 ABCA 221 is an outrageous judgment, rating right up there with the Shuchuk v. Alberta Workers Compensation Board judgment discussed below…. [September 02, 2014: As an interesting aside, here’s a chilling article from CBC News on working conditions at Husky Oil’s new Sunrise plant 60 kilometres north of Fort McMurray in Alberta: http://www.cbc.ca/news/canada/edmonton/canadians-expose-foreign-worker-mess-in-oilsands-1.2750730 ]
scales clip art by http://www.rgbstock.com/user/darktaco , creative attribution, share-alike license; Calgary Courts Centre by http://s272.photobucket.com/user/lumin8_bucket/profile/
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Shuchuk v. Alberta (Workers’ Compensation Board), 2012 ABCA 50 As I said in an earlier preamble to this post, I have, for one reason and another, been following the legal travails over the years of the unfortunate Thomas Shuchuk, as he took on the Alberta Worker’s Compensation Board, and later, the Appeals Commission for the Board, as well, in what must stand in Canada as one of the most doughty battles ever. against bad faith in a public body. Sadly, it appears to me that it has all come to naught in the end – not because that’s what his case merits – far from it! but because in the end the individual peculiarities of judges always make going to court a roll of the dice…
Here, unless Thomas Shuchuk’s got rich lawyers who are real knights prepared to battle on to the Supreme Court of Canada for him pro bono, is the grave and epitaph on his battle to get a fair ruling on his work-injury case from the Workmen’s Compensation Board and its Appeals Commission:
It appears to me, from the discernible pattern in the court files of the order in which the justices will be listed on a judgment, that the Honourable Mr. Justice Peter Martin wrote the 2012 decision on Shuchuk v. Worker’s Compensation, [concurred in by Mr. Justice Jack Watson and Madam Justice Myra Bielby]; and as we shall see, he was also one of the three ruling judges in a previous ABCA decision concerning the WCB case of Thomas Shuchuk…
In the 2012 case, heard, ironically, on February 14 of 2012, Justice Peter Martin, evidently writing for the Court, delivers the final judgment of the Alberta Court of Appeal, saying:
“ To be crystal clear, the Commission is bound by its July 2004 conclusion that the MVA caused Mr. Shuchuk’s condition up to the end of December 1996. It is not entitled to reconsider that conclusion. The only issue for it to reconsider is whether the MVA con-tributed to the continuation of his condition after December 1996. If so, the Commission shall award Mr. Shuchuk appropriate benefits up to such time, if ever, the factor no longer contributes to the existence of his condition.
 If the Commission determines that factor no longer contributes to the existence of Mr. Shuchuk’s condition in more than a minimal way after December 1996, it is required to determine when the factor ceased to do so and award Mr. Shuchuk appropriate benefits up to that date.”
Here are the problems with that judgment statement, as I see them to be: 1. Justice Martin also says in his 2012 statement of judgment for the Court: “ In July 2005, a judge of the Court of Queen’s Bench held the Commission’s interpretation of the Policy was unreasonable and its selection of the December 1996 termination date was patently unreasonable: Shuchuk v Alberta (Workers’ Compensation Board, Appeals Commission), 2005 ABQB 526, 383 AR 361 (“the first judicial review”). Thus, he ordered the Commission to reconsider its decision.
“ The WCB unsuccessfully appealed the reviewing judge’s decision to this Court. In July 2007, this Court remitted the matter to the Commission for reconsideration pursuant to the 2007 directions.”
Here’s that 2005 case reference:
Court of Queen’s Bench of Alberta
Citation: Shuchuk v. Alberta (Workers’ Compensation Board, Appeals Commission), 2005
Docket: 0403 23325
and, quoting from that 2005 decision, which written by Honourable Mr. Justice E.S. Lefsrud: “ There is evidence to support a finding that the Applicant’s condition worsened as a result of his lay off and subsequent dealings with the WCB. However, as stated above, the question which the Commission must address is whether the Applicant, had he been healthy, would have experienced this psychological or psychiatric disability as a result of the subsequent events. The Respondents argue that the necessary analysis and findings to support the December 1996 cut off are implicit in the decision and supported by the evidence. I have found that the Commission’s interpretation of Policy ADJ-39 was un-reasonable and that it made a patently unreasonable determination in choosing the date of termination of benefits based on a finding that a brain injury had been ruled out by Dec- ember 1996.  In keeping with s. 13.4(11)(b) of the Act, I refer the matter back to the Commission for reconsideration. I will leave it to the Commission on a reconsideration to undertake the appropriate analysis on causation.”
[One can see how that last unfortunate paragraph by Justice Lefsrud sparked the subse-quent attempt by the WCB Appeals Commission to try to turn back the clock on their previous causation assessments, but, I digress…]
The main point is, yep, Martin was indeed correct in pointing out that Justice Lefsrud had found the Commission’s ruling regarding the December 1996 cut-off date was “patently unreasonable” – which makes it all the more inexplicable that, in the 2012 ruling, the Court nevertheless in effect allows the Appeals Commission to consider once again whether or not “whether the MVA contributed to the continuation of his condition after December 1996.” See, that’s just handing back to the Commission the very power to choose December 1996 as a cut-off date that was taken away from them in the 2005 decision by Justice Lefsrud – the subsequent appeal of which decision was, as Justice Martin himself states in writing for the Court in the 2012 decision, unsuccessful: “ The WCB unsuccessfully appealed the reviewing judge’s decision to this Court.” Logically, this would mean that in fact the one thing the Commission cannot reasonably do is to consider December 1996 as a potential cut-off date!
But, wait, there’s more…
There’s the 2007 Alberta Court of Appeals case.
Here’s the reference:
In the Court of Appeal of Alberta
Citation: Shuchuk v. Alberta (Workers’ Compensation Board), 2007 ABCA 213
Thomas Shuchuk and Appeals Commission for Alberta
– and –
Workers’ Compensation Board – Alberta
and it can be found at this URL: https://www.canlii.org/en/ab/abca/doc/2007/2007abca213/2007abca213.html
and now, quoting from that 2007 judgment, with which Justice Peter Martin concurred when he was sitting in that 2007 ABCA case: “ Nonetheless, the chambers judge was correct in holding that the Commission was patently unreasonable by selecting December 1996 as the date by which WCB benefits would terminate, based on the finding that the brain injury had been medically ruled out by that date. The Commission initially found in 1999 that Shuchuk had suffered brain injury, which was later confirmed in 2001. It did not reverse itself on the issue of brain injury until the hearing underlying this appeal. Therefore, the issue of whether Shuchuk had ever suffered a brain injury was still very much alive on, and after, December 1996. For the Commission to consider the medical evidence to be conclusive by this time simply ignores the history of this matter, and the facts as they existed at that time. Conclusion  This appeal is dismissed. The matter is remitted to the Commission to reconsider both whether Shu-chuk’s condition resulted from any factor enumerated in the Policy and whether those factors played any role in Shuchuk’s ongoing condition. Even if that role is minor, the Commission should still direct that compensation is payable at least until it becomes a de minimis or less cause.”
So, the Alberta Court of Appeal had previously found that the Appeals Commission had RULED IN 1999 and CONFIRMED IN 2001 that Thomas Shuchuk had suffered a brain injury as a result of his workplace accident.
How much less reasonable now in 2012 is the decision by the Alberta Court of Appeal to give the Workers’ Compensation Board Appeals Commission what amounts to de facto permission to re-consider whether or not Thomas Shuchuk’s injury con-tinued after December 1996. Thanks to that 2012 ruling as it was delivered on Val-entine’s Day for the Court by Justice Peter Martin, there is now nothing whatsoever to stop the Commission from selecting January 01, 1997 as the new cut-off date for the unfortunate brain-injured Thomas Shuchuk. The Alberta Court of Appeal in the 2012 decision has simply rendered null and void both the 2005 and the 2007 court decisions – with no justification for doing so whatsoever.
Supreme Court Appeals cost a lot of money. No matter how noble the lawyers, and Thomas Shuchuk must have found some real knights, it’s very unlikely his fight will continue past this point, as the judges on the Appeals Court must be well aware…
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In Patrus v Alberta (Workers’ Compensation Board), 2014 ABCA 117, https://www.canlii.org/en/ab/abca/doc/2014/2014abca117/2014abca117.pdf
the first part of the Court’s decision, regarding the allocation of temporary total disability benefits (TTD), is summarized in clauses 37 – 41 incl. of the “Memorandum of Judgment” written by Mr. Justice Peter Martin and Madam Justice Rosemary Nation:
“ Having considered the WCA, and the applicable policies, was it reasonable for the AC [WCB Appeals Commission] to interpret “suitable employment” within the TTD benefit scheme as looking only at the work-related injury or the compensable restrictions (i.e., the hand restrictions, as opposed to the abilities and restrictions of the worker as a whole person)?
 TTD benefits are payable as long as the compensable temporary disability lasts. In interpreting WCB Policy 04-02, the AC [WCB Appeals Commission] correctly put the emphasis on the word “compensable”. The injury to the worker as a result of an accident is the compensable item. Following this focus for the purpose of examining TTD benefits, the AC held that “suitable employment” means suitable work considering only the hand injury.
 By overturning the AC’s decision on this point, the appeal judge [Alberta Queen’s Bench Justice P.M. Clark] suggests that suitable employment for TTD purposes must consider the condition and abilities of the whole person and a specific “suitable” job. This interpretation undermines the importance of permanent disability assessments in each case. If a suitable job could not be identified under the whole person analysis, the injured worker would remain on TTD regardless of whether his injury has been determined to be permanent.
 The decision of the AC is consistent with both the Queen’s Bench and the Court of Appeal decisions in St. Cyr. The facts are very similar to this case. At paragraphs 70-73, the trial judge in St. Cyr (QB) noted that Mr. St. Cyr’s assertion that he was entitled to TTD until suitable employment was identified was not supported by the policy or the WCA. In St. Cyr (CA), this court agreed and concluded the AC was reasonable in finding that WCB Policy 04-05, which relates to the assessment of permanent disability payments and defines a worker being employable when suitable work has been identified which he or she is capable of performing, does not apply to TTD eligibility or the calculation of a TTD benefit.
 In light of this, we conclude that the AC was reasonable in its interpretation of the policy wording related to TTD. The AC explained and interpreted the WCB policies with reasons that were justified, transparent and intelligible, and within the range of acceptable outcomes.”
Then we get to the second part of the Alberta Court of Appeals Judgment, which addressed the issue of permanent disability benefits in its clauses 42 and 43:
“ To determine Mr. Patrus’ entitlement to permanent benefits, the AC [WCB Appeals Commission] used the definition of “suitable work” set out in WCB Policy 04-04. The pur-pose of WCB Policy 04-04 is to assess the worker’s return to actual employment, to help the worker get there, or to use that wage in the assessment of a permanent disability payment. This is consistent with this court’s decision in Gahir, where the AC’s decision that there was a functional capacity to work, without identifying a specific job that the worker could do, was found to be reasonable. In that case, this court specifically approved the AC’s decision to direct payment of minimum wage as interim relief, while the case was sent back to the WCB to deal with the details. This type of interim payment was also approved in Watson v Alberta (Workers Compensation Board), 2011 ABCA 127, 502 AR207. In that case, a decision to base interim benefits on the basis of minimum wage was found to be reasonable, and within the range of possible, acceptable outcomes (at para 52).”
“ The AC was reasonable in reviewing Mr. Patrus’ entitlement to receive ELP pay-ments, in allowing the appeal, and in finding that it was not appropriate to estimate Mr. Patrus’ post-accident earning capacity on the basis of employment as a video store clerk. The AC directed that benefits be based on an ability to do a minimum wage job until the WCB identified a new, suitable position on which to estimate the worker’s post-accident earning capacity.”
Additionally, the Appeals Court decision describes the Queen’s Bench “reasons” thusly in its clause 23: “ The appeal judge also noted that there was no effective vocational plan in place for Mr. Patrus, and no indication that he had been provided with the requisite vocational support to function effectively in the work place: para 81. This consideration, paired with the fact that the WCB had identified a job that Mr. Patrus could not do, led the appeal judge to conclude that it would be appropriate to restore Mr. Patrus’ benefits to the TTD level. He referred the matter back to the AC for determination of Mr. Patrus’ employability according to his reasons.”
Contrast that clause 23 with what QB Justice P.M. Clark actually said https://www.canlii.org/en/ab/abqb/doc/2011/2011abqb523/2011abqb523.html
in clause 55 of his judgment: “ In other words, employment is only “suitable” if the worker can perform it, considering the whole person, not just the accident-related injury. Importing that definition into WCB Policy 04-02 Part II, it is clear that the policy considers a worker to be eligible for TTD benefits as long as both of these conditions are true: [emphasis mine]
1) The work-related injury prevents the worker from resuming his or her pre-accident job.
2) The work-related injury prevents the worker from performing other jobs which he or she would otherwise have been capable of performing, but for the injury.”
And in clause 85 Justice Clark makes it clear he expects the principles articulated in his clause 55 to be adhered to in the awarding of TTD to Patrus:
“ The matter is referred back to the AC for reconsideration in accordance with these reasons, with the following specific directions:
(1) In accordance with the definition of “suitable employment”, the AC is directed to consider all relevant attributes of the Appellant when determining whether he is capable of suitable employment, not just limitations related to the accident. This is relevant for deter-mining TTD and other benefits.
(2) If a finding is made in the abstract that the Appellant is able to work, the AC is directed to consider whether it is just to reduce his benefits below the TTD level before a specific suitable job is identified.
(3) In the interim the AC is directed to set a compensation level in accordance with the principles in these reasons.”
However, the only thing the Appeals Court has to say about Justice Clark’s clause 55 is in connection to its very first sentence, in connection with what constitutes “suitable employ-ment:” From the Appeals Court Judgment:
“ Applying that standard, the appeal judge concluded that the AC’s reasons for decision were not justifiable, transparent or intelligible and the decision did not fall within the range of possible, acceptable outcomes, which are defensible in respect of the facts and the law. Specifically, the appeal judge held that by focusing on “medical evidence” and “compens-able work restriction”, the AC failed to consider Mr. Patrus’ “non-compensable” limitations (i.e., his severe intellectual disabilities): para 56. According to the appeal judge, the definition of “suitable employment” in WCB Policy 04-04 should be interpreted as meaning that employment is only “suitable” if the worker can perform it, considering the whole person and not just the accident-related injury: para 55.”
As for WCB Policy 04-05 Part 1 http://www.wcb.ab.ca/public/policy/manual/0405p1.asp which states: “1.0 Compensable Work Restrictions Compensable work restrictions are based on an assess-ment of the medical conditions (physical and/or psychological) which resulted from the work-related injury. Work restrictions impair a worker’s ability to perform pre-accident work duties or to adapt to some other employment. For example, the worker’s com-pensable condition prevents return to pre-accident or comparable employ-ment [emphasis mine], or the worker suffers from a disabling or potentially disabling occupational disease and continued exposure would be harmful). The WCB identifies work restrictions, based on medical and vocational information about the worker. The restrictions may be temporary or permanent.”
the Alberta Court of Appeals majority judgment says, first, with respect to the payment of temporary total benefits to Patrus: “ The decision of the AC is consistent with both the Queen’s Bench and the Court of Appeal decisions in St. Cyr. The facts are very similar to this case. At paragraphs 70-73, the trial judge in St. Cyr (QB) noted that Mr. St. Cyr’s assertion that he was entitled to TTD until suitable employment was identified was not supported by the policy or the WCA. In St. Cyr (CA), this court agreed and concluded the AC was reasonable in finding that WCB Policy 04-05, which relates to the assessment of permanent disability payments and defines a worker being employable when suitable work has been identified which he or she is capable of performing, does not apply to TTD eligibility or the calculation of a TTD benefit.
 In light of this, we conclude that the AC was reasonable in its interpretation of the policy wording related to TTD. The AC explained and interpreted the WCB policies with reasons that were justified, transparent and intelligible, and within the range of acceptable outcomes.”
And then, with respect to the payment of permanent benefits, the Appeals Court simply ignores Policy 04-05.1, and uses instead WCB Policy 04.04’s definition of “suitable em-ployment” – without even specifying which part of the policy the Appeals Court is quoting: “ To determine Mr. Patrus’ entitlement to permanent benefits, the AC used the definition of “suitable work” set out in WCB Policy 04-04. The purpose of WCB Policy 04-04 is to assess the worker’s return to actual employment, to help the worker get there, or to use that wage in the assessment of a permanent disability payment.”
The trial judge wasn’t as lazy: “ To understand this policy it is necessary to consider the definition of “suitable employment”. That term is defined in WCB Policy 04-04 Part II and in the Glossary to the Policies and Information Manual. The definition is as follows:”
What’s especially interesting to me about that omission by the Appeals Court is that earlier on in the court’s same judgment, it does give the precise part of another WCB policy it is quoting: “ WCB Policy 04-02 Part I defines TTD as occurring when: “a compensable work injury or occupational disease results in temporary work restrictions which prevent a worker from performing the accident job and/or any concurrent employment.”
Cerisola Renato, ‘Nodo gordiano,’ photo by Comquiliano at wikimedia.org, creative attribution, share-alike license