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PROVINCE OF PRINCE EDWARD ISLANDPRINCE EDWARD ISLAND COURT OF APPEAL

Citation: Workers’ Comp. Bd. (PEI) v. Cormier 2011 PECA 1 Date: 20110107Docket: S1-CA-1189

Registry: Charlottetown

BETWEEN:

WORKERS’ COMPENSATION BOARDOF PRINCE EDWARD ISLAND

APPELLANTAND:

KAREN CORMIERRESPONDENT

Before: Chief Justice David H. Jenkins Justice John A. McQuaid Justice Michele M. Murphy

Appearances:

Brian L. Waddell, Q.C., counsel for the appellant

Maureen A. Peters, for the respondent

Michael G. Drake, counsel for Workers’ Compensation Appeal Tribunal

Place and Date of Hearing Charlottetown, Prince Edward IslandSeptember 21, 2010

Place and Date of Judgment Charlottetown, Prince Edward IslandJanuary 7, 2011

Written Reasons by:Justice Michele M. MurphyConcurred in by:Chief Justice David H. JenkinsDissenting reasons by:Justice John A. McQuaid

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WORKERS’ COMPENSATION - Bias- Reasonable Apprehension of bias Per Murphy J.A. (Jenkins C.J.P.E.I. concurring): The Court of Appeal allowed theappeal by the Workers’ Compensation Board and determined that a statementcontained in Decision # 70 of the Workers’ Compensation Appeal Tribunal (“WCAT”)demonstrated a reasonable apprehension of bias. As a result, the decision rendered byWCAT was declared void and the matter was remitted back to WCAT to be reheardby a panel comprised of three new panel members.

Per McQuaid J.A. (dissenting): The reasons do not raise a reasonable apprehension ofbias and the proceedings did not lack in procedural fairness. A complete reading andanalysis of the panel’s reasons, absent a focus on the impugned words, can lead to noother conclusion than the panel fully considered the evidence of the Board’s medicaladvisers and gave valid reasons for rejecting it.

Authorities Cited:By Murphy J.A.:CASES CONSIDERED: Sketchley v. Canada (Attorney General) (F.C.A.), [2006] 3F.C.R. 392, 2005 FCA 404 (Federal Court of Appeal); C.U.P.E. v. Ontario (Minister ofLabour), [2003] 1 S.C.R.539; Histed v. Law Society of Manitoba, 2006 MBCA 89,[2006] M.J. No. 290; Gahir v. Alberta (Workers’ Compensation Appeals Commission,2009 ABCA 59; Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC45; Bennett v. British Columbia (Superintendent of Brokers) 1994 CANLII 912(BCCA), (1994), 30 Admin. L.R. (2d) 283 (BCCA); Rex v. Sussex Justices (1924 1 K.B.256; Dulmage v. Ontario (Police Complaints Commissioner), [1994] O.J. (3d) 356(Ont. Div. Court), 1994 CANLII 8773; Metropolitan Properties Co. v. Lannon, [1969]1 Q.B. 577, 599 (Eng. CA); Committee for Justice and Liberty v. Canada (NationalEnergy Board), [1976] S.C.J. No. 118, [1978] 1 S.C.R. 369 (SCC); Concordia Hospitalv. Concordia Nurses Union, Local 27 (2004), 134 L.A.C. (4th) 353 (Man.Q.B.);Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of PublicUtilities), [1992] 1 S.C.R. 623, 1992 CANLII 84; Toromont Industries Ltd. v.International Union of Operating Engineers, Local 904, [2008] N.J. No. 235, 280Nfld. & P.E.I.R. 157 (NLSCTD)

STATUTES CONSIDERED: Workers’ Compensation Act, R.S.P.E.I. 1988, W-7.1

TEXT CONSIDERED: Régimbald, Guy: Canadian Administrative Law (first ed.),(LexisNexis 2008); Brown and Evans: Judicial Review of Administrative Action inCanada (Canvasback, Vol. 3)

By McQuaid J.A. (dissenting):CASES CONSIDERED: 2747-3174 Québec Inc. v. Quebec (Régis des permis

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d'alcool), [1996] 3 S.C.R. 919 (SCC); Wewaykum Indian Band v. Canada 2003 SCC45, [2003] 2 S.C.R. 259; Committee for Justice and Liberty v. Canada (NationalEnergy Board), [1976] S.C.J. No. 118, [1978] 1 S.C.R. 369 (SCC); and Prince EdwardIsland (Workers' Compensation Board) v. MacDonald 2007 PESCAD 4

STATUTES CONSIDERED: Workers’ Compensation Act, R.S.P.E.I. 1988, W-7.1,s.56(23)

TEXT CONSIDERED: T. Ison: Workers' Compensation in Canada, 2nd ed. (TorontoButterworths, 1989)

Reasons for judgment:

MURPHY J.A.:

[1] The respondent, Karen Cormier, filed a workers compensation claim with theappellant, Workers’ Compensation Board of Prince Edward Island (the “Board”) onSeptember 4, 2003. At the time, the respondent was employed as a pastoral careassociate at the Prince Edward Home with the Queen’s Health Region. Therespondent claimed she suffered from a number and range of health-related maladiessuch as headaches, nausea, ringing in her ears, burning red swollen eyes and sorethroat. The respondent attributed these health issues to what is colloquially known as“sick building syndrome.”

[2] The respondent moved work locations. Numerous air quality, moldinvestigations, and asbestos tests were conducted at the work sites. The resultsindicated that all were within acceptable levels.

[3] The respondent’s health problems persisted and only subsided when herphysician, Dr. Neily, advised her to stop attending at her work place. He diagnosedher as having a moderate case of environmental sensitivity and classified the injurytype as “environmental sensitivity/toxic exposure.”

[4] Initially, the respondent’s claim for workers compensation was denied andsubsequently, after an internal reconsideration was completed, her claim was againdenied. The respondent appealed the decision to the Workers Compensation AppealTribunal (“WCAT”). The hearing before WCAT was adjourned part way through asthe respondent sought to introduce new evidence including three letters from herfamily physician. The Internal Reconsideration Officer (the “IRO”) reviewed the newmaterial and made the determination that the material to be reviewed was either notnew evidence, a restatement of information already on file, or irrelevant, andtherefore excluded the evidence. The IRO again denied the respondents request for

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reconsideration.

[5] The respondent advised WCAT that she wished to appeal the decision to denyher benefits and introduce the new evidence.

[6] WCAT heard the matter, reversed the decision of the IRO, and concluded thatthe respondent’s health issues arose out of, and in the course of, her employment andwere therefore compensable by the Board.

[7] The Board sought leave to appeal the decision arguing that WCAT committederrors of law and jurisdiction on a number of grounds. In one ground, the Board tookissue with the following statement found at para.103 of the decision:

Given that Dr. Carruthers and Dr. O’Brien, to the best of the knowledge ofthis panel, are of equal qualification to make or refute a diagnosis ofenvironmental sensitivity; in light of the fact that Dr. Neily would not haveany potential bias between one diagnosis and the next whereas physiciansin the employ of the Board could reasonably be seen to have a slight benttowards a finding that might help their employer; the fact that Dr. Neilyphysically saw the worker and was in a better position to make a diagnosis;this panel finds that the medical evidence weighs more in the Worker’sfavor than not, or at least there is so little difference that the workerdeserves the benefit of the doubt, as she is entitled to pursuant to the abovepolicies...[Emphasis mine]

[8] On June 30, 2010, this Court granted the Board leave to appeal on the groundthat the issue of bias was an arguable issue and reviewable by this Court.

ISSUE

[9] This appeal raises the issue of:

Whether the presence of the impugned language in the WCAT decisiondemonstrates a reasonable apprehension of bias?

DISPOSITION

[10] In my view, the impugned language contained in the WCAT decisiondemonstrates a reasonable apprehension of bias. Therefore, I would allow the appealand order that the decision rendered by WCAT be declared void and the matter beremitted back to WCAT to be reheard by a new panel.

ANALYSIS

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1) Standard of review

[11] Procedural fairness goes to the jurisdiction of WCAT as a tribunal, and isreviewable as a question of law. When reviewing a matter which involves a challengemade on a ground of bias, and as both parties submitted, and I agree, the applicablestandard of review is correctness. A court must determine whether the decision makeradhered to the principles of procedural fairness or not and, in doing so, the court is togive no deference to the decision-making body. See: Sketchley v. Canada (AttorneyGeneral) (F.C.A.), [2006] 3 F.C.R. 392, 2005 FCA 404 at ¶53, applying directions inC.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R.539, at ¶100,102-103; alsosee: Histed v. Law Society of Manitoba, 2006 MBCA 89, [2006] M.J. No. 290, ¶47.The Pushpanathan/Dunsmuir standard of review analysis does not affect the standardof review applicable to the issue of bias. See: Gahir v. Alberta (Workers’Compensation Appeals Commission, 2009 ABCA 59 at ¶15.

2) Reasonable apprehension of bias

[12] The rule against bias is one of the most fundamental elements of proceduralfairness. The cornerstone of our legal system is rooted in the fundamental belief thatthose who adjudicate in law must always do so without bias or prejudice and must beperceived to do so. See: Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259.

[13] The rule against bias applies to administrative boards exercising adjudicativefunctions. This was considered in the case of Newfoundland Telephone Co. v.Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623. This case involved a determination of whether remarks made by one commissioner ofthe public utility board were biased. The commissioner was formerly a consumersadvocate and made several strong statements against the executive pay policies of thetelephone company. The Supreme Court of Canada found there was a clear indicationthat not only was there a reasonable apprehension of bias but that the commissioneralso demonstrated that he had a closed mind on the subject. The court stated at ¶27 :

It can be seen that there is a great diversity of administrative boards. Thosethat are primarily adjudicative in their functions will be expected to complywith the standard applicable to courts. That is to say the conduct of themembers of the Board should be such that there could be no reasonableapprehension of bias with regard to their decision. At the other end of thescale are boards with popularly elected members such as those dealing withplanning and development whose members are municipal councillors.With those boards the standard will be much more lenient....

[14] Bias has been described as being “a lack neutrality” on the issue to be decided. Impartiality has been described “as a state of mind in which the adjudicator is

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disinterested in the outcome and is open to persuasion by the evidence andsubmissions.” See: Régimbald, Guy: Canadian Administrative Law (first ed.),(LexisNexis 2008), p.33.

[15] In Bennett v. British Columbia (Superintendent of Brokers) 1994 CANLII 912(BCCA); 30 Admin. L.R. (2d) 283, at p.288, “bias” was explained as “anything whichtends or is seen as tending to cause someone acting in a judicial capacity to decide acase on another basis than the evidence.”

[16] The often repeated saying of Lord Hewart, Chief Justice, in Rex v. SussexJustices (1924),1 K.B. 256 deserves repeating here:

It is not merely of some importance but is of fundamental importance thatjustice should not only be done, but should manifestly and undoubtedly beseen to be done.

[17] The test for finding a reasonable apprehension of bias has been discussed in anumber of cases. It is not necessary to show an “individual is biased or that a personmight be influenced or a certain position be repudiated.” See: Dulmage v. Ontario(Police Complaints Commissioner), [1994] O.J. (3d) 356 (Ont. Div. Court), at ¶28. Indiscussing the test, Lord Denning in Metropolitan Properties Co. v. Lannon, [1969] 1Q.B. 577, 599 (Eng. C.A.) stated as follows at page 6:

In considering whether there was a real likelihood of bias, the court doesnot look at the mind of the justice himself or at the mind of the chairman ofthe tribunal, or whoever it may be, who sits in a judicial capacity. It doesnot look to see if there was a real likelihood that he would, or did, in factfavour one side at the expense of the other. The court looks at theimpression which would be given to other people. Even if he was asimpartial as could be, nevertheless if right-minded person would think that,in the circumstances, there was a real likelihood of bias on his part, then heshould not sit. And if he does sit, his decision cannot stand ... Neverthelessthere must appear to be a real likelihood of bias. Surmise or conjecture isnot enough. ... There must be circumstances from which a reasonable manwould think it likely or probable that the justice or chairman, as the casemay be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plainenough. Justice must be rooted in confidence: and confidence is destroyedwhen right-minded people go away thinking: ‘The judge wasbiased.’[Emphasis mine]

[18] In Canada, the test for reasonable apprehension of bias was set out by deGrandpré J., writing in dissent in Committee for Justice and Liberty v. Canada(National Energy Board), [1978] 1 S.C.R. 369 (SCC), at ¶394:

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[T] he apprehension of bias must be a reasonable one held by reasonableand right minded persons, applying themselves to the question andobtaining thereon the required information ... [T]hat test is ‘what would aninformed person, viewing the matter realistically and practically - andhaving thought the matter through - conclude. Would he think that it ismore likely than not that [the decision-maker], whether consciously orunconsciously, would not decide fairly.

[19] Whether a decision-maker has crossed the line depends on an assessment ofthe particular administrative, legal and factual contexts. In Brown and Evans: JudicialReview of Administrative Action in Canada (Canvasback, Vol. 3, Ch.11-48), theauthors outline two factors to be of particular importance in determining whetherthere is a reasonable apprehension of bias. The first is the nature of the issues indispute at the hearing. Typically decision-makers are given more latitude with respectto issues of law and policy than questions of fact. The second is the extent to whichthe decision-maker can be said to be committed to a definitive view on the issue to bedecided.

[20] Like courts, decision-makers must not prejudge matters; must be seen as beingimpartial and must act judicially. The tone and content of a decision may convey areasonable apprehension of bias. In Concordia Hospital v. Concordia Nurses Union,Local 27 (2004), 134 L.A.C. (4th) 353 (Man.Q.B.), the court determined that the chairof the board was biased when the tone of questions and the contents of a lettersuggested that the chair’s views were predetermined.

[21] In Toromont Industries Ltd. v. International Union of Operating Engineers,Local 904, [2008] N.J. No. 235, 280 Nfld. & P.E.I.R. 157,(NLSCTD), at ¶21, the courtset the arbitrator’s decision aside as it gave rise to a reasonable apprehension of bias. The court considered that some of the language in the decision was sarcastic and tosome degree inflammatory, particularly the following comments:

... An employee who may have done something wrong has more rightsunder the Collective Agreement than an injured worker.

... they are stripping the injured worker of his bargaining unit rights in theprocess.

[22] In the case at bar, the appellant argues that the existence of the impugnedstatement in the reasons for decision indicates that WCAT was predisposed to aparticular result and the fact that the statement was made is sufficient to indicate thatpredisposition. The appellant’s most compelling argument is that the question was notwhether the statement made a difference to the result but rather whether it made adifference to the administration of justice.

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[23] The respondent argues that the decision was a reasoned decision and that theentire decision must be reviewed contextually. The respondent argues that onestatement is not sufficient to set aside the decision and that the impugned statementdid not materially impact the final decision.

[24] The respondent argues, as well, that the matter of the objectivity of thephysicians was in issue at the WCAT hearing and that the impugned statement is aresponse to this issue.

[25] WCAT identified the issue before it was to determine whether the respondentwas entitled to benefits pursuant to the Act. From its reasons, WCAT determined thatthe Board is “responsible to weigh all of the evidence on the file to determinewhether on a balance of probabilities it is more probably [sic] than not that therespondent’s affliction arose from her employment.” After reviewing the information,WCAT found that the conflicting medical evidence was the key to its decision (¶94-101).

[26] WCAT explained its decision to overturn the decision of the Board and todetermine that the respondent’s illness was attributable to the workplace. It explainedhow it weighed the conflicting testimony. WCAT considered the competing medicalevidence of the respondent’s family physician and the Board doctors and anenvironmental report to be the primary evidence. It considered the respondent’sdoctor to be in a better position than the Board doctors to assess the respondent’sclaim. WCAT then assessed the decision as a close call, such that the statutorybenefit of the doubt provision should be employed, and decided in favour of therespondent.

[27] In coming to this conclusion, WCAT stated that a consideration within itsreasoning was that the Board physicians “could reasonably be seen to have a slightbent towards a finding that might help their employer.” This statement was madewithout any foundation on the record. There was no evidence before WCAT thatwould permit it to come to this conclusion. There was no evidence in this case tosuggest that the Board doctors were doing anything other than what they weresupposed to be doing and that is objectively evaluate workers’ claims from a medicalstandpoint. Nor was there any basis upon which to attribute such a propensity.WCAT’s statement constituted stereotyping, and misapprehends the scheme of theAct.

[28] To paraphrase de Grandpré J., I find that a reasonable, informed and right-minded person, possessing the necessary information and reviewing the matterrealistically and practically, and having thought the matter through, would conclude,

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that it is more likely than not, that the author of the WCAT decision, and the panelmembers who endorsed the decision, whether consciously or unconsciously, wouldnot decide “fairly.” I think that a reasonable, informed and right-minded person wouldconclude that using the language “could reasonably be seen to have a slight benttowards a finding that might help their employer” describing the opinions of medicaldoctors, demonstrates a propensity to prejudge the matter and a predisposition toarrive at a certain result. Put another way, the WCAT reasons raise a reasonableapprehension that the panel members were closed to granting equal weight to themedical opinions of the Board doctors.

[29] Whether the impugned statement is an unfortunate statement, an off-the-cuffremark, a statement which affected the result, a statement which may have resultedfrom a discourse during the hearing involving the objectivity of the medical doctors, itis a statement that WCAT itself interjected, at the critical point of weighing the primaryevidence, and stated it to be a factor. It is a statement upon which a reasonablyinformed bystander could reasonably perceive bias on the part of the decision-maker.While WCAT, including its panel members, are entitled to be presumed to beimpartial, that presumption can, and in this case is, rebutted by the evidence whichsuggests otherwise. As a result of a reasonable apprehension of bias being present,any decision made by WCAT would be tainted, and consequently WCAT would haveexceeded its jurisdiction.

[30] For the above reasons, I find that the impugned statement demonstrates areasonable apprehension of bias. Accordingly, I would allow the appeal and orderthat the decision rendered by WCAT be declared void and the matter be remitted backto WCAT to be heard by a panel comprised of three new members.

[31] WCAT appropriately confined its submissions to matters of jurisdiction, and theBoard did not seek costs against any party. No costs will be awarded.

_____________________________________Justice Michele M. Murphy

I AGREE: ______________________________________ Chief Justice David H. Jenkins

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McQUAID J.A. (dissenting):

INTRODUCTION

[32] I have read the reasons of Murphy J.A., and I respectfully disagree that theWorkers Compensation Appeal Tribunal ("WCAT") demonstrated a reasonableapprehension of bias when providing reasons as to why Ms. Cormier's appeal from thedecision of the Workers' Compensation Board (the "Board") should be allowed.

[33] The comment which allegedly demonstrates a reasonable apprehension of biasand which allegedly results in the absence of procedural fairness is included inparagraph 103 of the reasons of WCAT. The entire paragraph reads as follows and theimpugned comment is underlined.

103. Given that Dr. Carruthers and Dr. O'Brien, to the best of theknowledge of this Panel, are of equal qualification to make orrefute a diagnosis of environmental sensitivity; in light of the factthat Dr. Neily would not likely have any potential bias betweenone diagnosis and the next whereas physicians in the employ of theBoard could reasonably been seen to have a slight bent towards afinding that might help their employer; the fact that Dr. Neilyphysically saw the Worker and was in a better position to make adiagnosis; this Panel finds that the medical evidence weighs morein the Worker's favor than not, or at least that there is so littledifference that the Worker deserves the benefit of the doubt, as sheis entitled to pursuant to the above noted policies and POL04-17.

[34] The Board denied Ms. Cormier's claim for compensation after she alleged herworkplace caused her to experience environmental sensitivity which, in turn, causedher to experience headaches and other symptoms.

[35] Ms. Cormier's claim was initially denied by an entitlement officer of the Board. She requested the Board to reconsider that decision. An internal reconsideration officerof the Board also denied the claim.

[36] Ms. Cormier appealed to WCAT. The appeal hearing commenced in March,2007 and in April of the same year, Ms. Cormier provided WCAT with what sheconsidered to be new evidence. In accordance with s. 56(23) of the Workers’Compensation Act, R.S.P.E.I. 1988, W-7.1 (the “Act” ), WCAT referred the claim backto the Board to consider the new evidence. The Board concluded the evidence wasnot new and the consideration of Ms. Cormier’s claim was returned to WCAT.

[37] A hearing was held. Ms. Cormier represented herself. On November 2, 2009,WCAT issued a decision overturning the findings of the Board. WCAT found that Ms.

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Cormier's health problems arose from the workplace and that she was entitled toreceive compensation.

[38] The Board sought leave from this Court to appeal the decision of WCAT on anumber of grounds. These grounds included the failure of WCAT to apply the correctstandard of review to the Board's decision, as well as the sufficiency of the evidencebefore WCAT. The majority of this Court denied the application for leave to appeal onall grounds except the ground that the decision of WCAT gives rise to a reasonableapprehension of bias. See: Prince Edward Island (Workers' Compensation Board) v.Cormier 2010 PECA 10 at paragraphs 13 and 51.

[39] As I explain below, I am of the opinion the reasons of WCAT do not raise areasonable apprehension of bias and the proceedings before WCAT did not lack inprocedural fairness.

ANALYSIS

[40] A quasi-judicial tribunal like WCAT must be impartial. There is no flexibility inthe application of the principle of impartiality. Proceedings must be conducted in theabsence of bias and prejudice. Any evidence that the partiality of a court or a tribunalhas been compromised constitutes a breach of the tribunal's duty to conduct its affairswith procedural fairness. See: 2747-3174 Québec Inc. v. Quebec (Régis des permisd'alcool), [1996] 3 S.C.R. 919 (SCC) per L'Heureux-Dubé J. at paras. 109-115, andWewaykum Indian Band v. Canada 2003 SCC 45, [2003] 2 S.C.R. 259.

[41] Because it is impossible to get inside the minds of the members of a tribunal toassess their partiality, courts have established a test for determining if the standard ofimpartiality has been breached. The test engages an inquiry as to whether there exists,either from the comments or the conduct of the members of the tribunal, a reasonableapprehension of bias.

[42] The reviewing court must ask whether an informed person viewing the matterrealistically and practically – having thought the matter through – would conclude thatit is more likely than not that the tribunal either consciously or unconsciously, woulddecide the matter before it fairly. See: Committee for Justice and Liberty v. Canada(National Energy Board), [1976] S.C.J. No. 118, [1978] 1 S.C.R. 369 (SCC) atparagraph 394.

[43] Apprehension of bias is about the unease a reasonable person has in theimpartiality of the decision maker. While there is no flexibility in the standard ofimpartiality or the bias of a tribunal – it must always be impartial and unbiased – thereis some flexibility in the application of the test to determine partiality and bias.

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[44] While certain conduct or a certain comment in a criminal trial might give rise toa reasonable apprehension of bias, similar conduct or comments in a proceedingbefore an administrative tribunal may not give rise to such an apprehension. Inparticular, more flexibility in the application of the test must be shown toadministrative tribunals comprised of lay people and where the liberty of the subject isnot at stake. Thus the reasonableness of a person's apprehension about the impartialityof the decision maker will vary among courts and administrative tribunals. See:2747-3174 Québec Inc. v. Quebec (Régis des permis d'alcool), ]1996] 3 S.C.R. 919(SCC) per L'Heureux-Dubé J. at paras 109-115.

[45] The issue before the WCAT panel was whether the Board had erred inconcluding that Ms. Cormier's headaches and other symptoms were caused by theworkplace environment.

[46] In the course of the hearing before WCAT, counsel for the Board urged WCATto reject the evidence of Ms. Cormier's family physician. Counsel for the Boardargued that a family physician is an advocate for his or her patient and not anindependent expert witness. This is an argument which counsel might be expected toposit before the tribunal. Had Ms. Cormier been represented by counsel at thehearing, her counsel might have countered the Board's position with the argument thatthe Board's medical advisors also lacked independence because of their associationwith the Board. The WCAT panel was, nevertheless, alive to the issue and correctlyformed the opinion that in weighing the evidence this issue had to be addressed intheir reasons.

[47] When assessing the reasonableness of the Board's unease or apprehension thatthe impugned comment made in the course of addressing this issue gives rise to biason the part of the panel, it is necessary to review the entire reasons of the panel andnot isolate or focus solely on the impugned comment. It is also necessary tounderstand the role of the Board, its medical advisors and WCAT.

[48] In decision #70 dated November 2, 2009, the three-person panel of WCATprovided extensive reasons for the decision to set aside the decision of the Board. Inthe initial 80 paragraphs of the decision, the panel provided the factual backgroundand history to Ms. Cormier's claim for compensation.

[49] Commencing at paragraph 81 and concluding at paragraph 89, the panelexplains their conclusion that Ms. Cormier made out a prima facie case tending toshow that her injury arose from the workplace. At paragraph 81 the panel extensivelysummarized all the evidence which was before the Board. They stated:

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81. In this instance, evidence was tendered in the form of numerousletters and forms from and filled out by the Worker's doctor and theincident report form filled out by her employer, as well as evidenceof her own that her illness arose out of and in the course of heremployment. This evidence includes:

a. Dr. Neily's letter of August 18, 2003, indicating:

… Recently she has taken a leave of absence from herplace of work at [personal information] and it turns out thatmost of these symptoms have greatly improved whilebeing away from work. She is feeling quite well at themoment and is able to return to work presently, however itseems apparent that the environment at [personalinformation] is deleterious to her health. I suspect that theold building with its propensity towards moistureproblems, molds, mildews and possibly formaldehyde andcleaning chemicals may be the source of hersymptomatology . . .

b. The Worker's Report, dated September 4, 2003, whichindicated that her symptoms occurred on her employer'spremises, at paragraph 6.

c. Physician's Initial Report of Injury completed by Dr. Neilyon September 19, 2003, indicating that "While at work at[personal information] [she] had gradually increasingsymptoms of headaches, burning eyes, sore throat, cloudthinking. Seems to feel much better when away from theworkplace. She feels it is the old building or cleaners shereacts to and not the work itself." In the same report healso noted an injury type of environmental sensitivity/toxicexposure;

d. An Employer's Report, filled out by [personal information]on September 16, 2003, that notes at Para. 8 that the injurydid occur at the Worker's place of work and at Para 10 thatshe was in the regular course of her duties;

e. Verbal comments made to her caseworker and noted in amemorandum to file on October 17, 2003, to the effectthat, " [Worker] was advised by Dr. Neily that [he] wasthinking perhaps it was the work environment/buildingthat was causing the Worker's symptoms, as nothing elseseemed to reveal the cause;

f. Numerous indications that there were fitness issues withher original office, including mold resulting from a waterleak, the possibility of asbestos and strong cleaners, and

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corresponding letters from her employer, including lettersfrom [personal information] tending to confirm that therewas a "water infiltration issue" in her workplace, and thatthere was asbestos insulation in other parts of the building;

g. Dr. Neily's notes, which indicate numerous symptomsoccurring over a prolonged period of time, as claimed bythe Worker, and a corresponding lessening of thesymptoms upon leaving work;

h. A Medical Progress Report filled out by Dr. Neily on May17, 2004, advising of the Worker's continued symptomsand indicating, "there seems to be an antecedentcorrelation between exposure to her work environmentand the above symptoms. …";

i. Dr. Neily's letter dated November 30, 2004, indicating:

Over three years prior to ending her position there, shesuffered from numerous complaints including headaches,blurred vision, eye pain, nausea and others that made herlife miserable. It became obvious that when she was awayfrom the workplace, these symptoms would graduallysettle down. It was felt that there were environmentalfactors in these locations which were deleterious to herhealth. She was forced to withdraw from work. She wasaway from work for a few weeks and these symptoms haveabated and have remained absent for the following sevenmonths.;

j. Dr. Neily's letter dated April 11, 2007, stating that sincehaving left [personal information] in 2004 the Worker's,issues have appeared to completely clear. There seemed tobe a clear association with time spent at these facilities andher various symptoms. I have, in fact, seen very little of hersince stopping work [personal information]. I feel that therewas some factors in the buildings which had a deleteriousaffect on her health, which seems now to have completelyresolved.

[50] At paragraphs 82 to 85 the panel confirms their conclusion Ms. Cormier madeout a prima facie case that her symptoms arose from the workplace:

82. As a result, accepting that the affliction the Worker complains ofrenders her eligible for benefits, the analysis should logically havemoved to a review of the above noted evidence in an effort todetermine whether the Worker had made out her case. We findthat this is where the members of the Board erred in their earlierdecisions. They failed to give adequate consideration to the

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evidence presented by the Worker, and instead focused on theevidence tending to rebut her evidence from the outset.

83. All of the evidence mentioned would suggest that the Worker wasin the course of her employment for at least the bulk of her time at[personal information]. Evidence was also tendered to show thather affliction stems from her activities undertaken while employedas a [personal information] Worker at [personal information].

84. In short, evidence was advanced that would tend to show herafflictions were "linked to, originated from, or were the result of, inwhole or in part, an activity or action undertaken because of theWorker's employment," and that it was linked to her employment"in terms of time, place and activity."

85. In light of the foregoing evidence this Panel finds that the Workerdid make out a prima facie case that her affliction did arise duringand out of the course of her employment. There is evidence thatthe injury arose while working at her place of employment, fromher, [personal information] who indicated so in his Employer'sReport, and Dr. Neily, who was her primary care physician andwhose notes reveal he saw her on no less than 21 occasions overthe span of the four years she was ill.

[51] The panel then provided, at paragraphs 89 and 90, a detailed review of theevidence which could be relied upon to support the Board's contention that Ms.Cormier's injuries did not arise from the workplace.

89. Following the guidelines set out above by which to conduct aweighing of the evidence analysis, it appears trite that the Workersuffers from an affliction. As discussed above, the Worker has madeout a prima facie case tending to show that her affliction has arisenout of her employment. This being the case, as was considered inthe earlier decisions, there is a great deal of evidence that has beenargued on behalf of the Board to tend to show that the Worker'saffliction does not stem from her employment.

90. This evidence and evidence which has been presented regardlessof its relevance includes the following:

- On 10 of the Worker's 21 visits to Dr. Neily she presentedwith symptoms of anxiety and depression, which wewould note have been considered by the Board to be inrelation to extraneous factors in the Worker's personal life,and have been characterized by the Worker to be as aresult of her work related affliction;

- An allergy test which revealed the Worker did not have

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clinically significant sensitivities to the types of moldstested for;

- A hearing test which found that the Worker suffered fromtinnitus, pressure in her inner ear, and at her secondexamination, ‘Responses for the left ear showed a mildhigh-frequency sensorineural loss of hearing.’;

- A consult with an Oral and Maxillofacial Surgeon whichresulted in a diagnosis of the Worker as a Bruxer (teethgrinder), which was resulting in muscle inflammation inher head and neck.

- Neurologist, Dr. Gregg MacLean found that the Workerhad a mixture of tension type headache with some TMJdysfunction on the right, though we note that thisdiagnosis was made after having made the mistake that theWorker was a [personal information], whose difficult workmay be weighing on her somewhat, and after having foundthat she "had no tenderness over the TMJ area on eitherside.

- Evidence of Dr. Carruthers who prepared a medicalcomment to file in relation to environmental sensitivity, inwhich he indicated that there were two other diagnosis onthe claim, being tension headache and a comment that theWorker has other significant stressors in her life. He foundthat there was, ‘no objective physical findings that wouldsupport a diagnosis of a building related or anenvironmentally related hypersensitivity. There is goodevidence this Worker has some stress related disorders,including a tension headache and a degree of anxiety.’ Healso provided a paper entitled "Multiple ChemicalSensitivity Syndrome: Impairment and Disability Issues";

- A HEPA report showing that there was mold in [personalinformation], but that it was not significant concentrationsto be deemed a danger;

- An opinion of Dr. Lamont Sweet interpreting the HEPAreport and coming to the same finding;

- Evidence of Dr. Steven O'Brien, wherein he indicates thathe believes that due to the HEPA report and thesubsequent opinion of Dr. Lamont Sweet, that there wasnot significant levels of mold in [personal information],there was ‘no evidence found to relate [Worker's]symptoms to her work environment.’ He also indicatedthat the subsequent improvement in the Worker's

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condition was likely as a result of the resolution of theextraneous stressors in her life.

[52] The panel continues at paragraphs 91 to 98 with their analysis and undertakesthe process of weighing the evidence in support of Ms. Cormier's position and theevidence which would support the decision of the Board.

91. It appears from what this Panel is able to garner from the paper thatwas provided by Dr. Carruthers that environmental sensitivity maybe compatible with the history provided. Further, Dr. Neily, theWorker's family physician, who saw the Worker more than anyother physician, and who had the benefit of all of the otherphysician's diagnosis and opinions, as well as knowledge of theaffliction and the same information as did the Board doctors,rendered an opinion and then later reaffirmed his opinion withfurther evidence in support, that the Worker did haveenvironmental sensitivity, or at least that the afflictions she wassuffering from did stem from her work environment.

92. By the virtue of the fact that the Board did not seek to have anyadditional testing done in relation to the Worker or to herenvironment at either of her places of work, the Board will havebeen deemed to have arrived at the determination that theevidence was sufficiently complete and reliable to allow a decisionto be made.

93. We would note that one important piece of evidence may bemissing in relation to this claim, which is a study, similar to thatprepared by HEPA, in relation to [personal information]. We alsonote that the evidence shows that there was a water leakage issuein the Worker's office in this building which forced her to move,and that her employer was to undertake repairs to remedy thisdamage pursuant to the’"Guideline on Assessment andRemediation of Fungi in Indoor Environments.’

94. In light of all of the foregoing the Board is then responsible toweigh all of the evidence on the file to determine whether on abalance of probabilities it is more probably than not that theWorker's affliction did arise as a result of her employment. Thisinvolves the assessment and weighing of all of the relevantevidence.

95. This Panel finds that the original decision makers erred at this stageof the analysis in placing too much emphasis upon the opinions ofthe Board doctors and not enough upon the opinion of Dr. Neily,who should have been in a better position to evaluate the Worker'scondition, being her primary care physician and having had thebenefit of all of the same information. It would also appear that theearlier decision makers focused on the possibility of only one

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diagnosis in relation to the Worker's afflictions.

96. Essentially, the only conflicting evidence discussed in the lowerlevel decisions is that the opinions of the Board doctors is contraryto the opinion of Dr. Neily. It is uncontroverted that there are otherdiagnosis on the file, but to the best of our knowledge, neither theWorker, nor Dr. Neily refute these diagnosis. In fact it was Dr.Neily that had the good sense to refer the Worker to the doctorsthat made these diagnosis.

97. Nor does there appear to be any indication that any one of thediagnosis, such as TMJ, Tension Headache, or Bruxism, preclude adiagnosis of environmental sensitivity. In fact, according to thepaper advanced by Dr. Carruthers, it would appear as thoughenvironmental sensitivity may share many of the samecharacteristic symptoms with the aforementioned afflictions.

98. We would also wish to note that a great deal of emphasis appearsto have been placed on the apparent lack of "objective" evidenceof environmental sensitivity having been advanced by the Worker.In relation to this, and pursuant to the definitions of Objective andSubjective medical evidence in POL04-67, the Panel wishes tonote that there was a great deal of objective evidence tendered infavor of the Worker's position. As examples, she was found to havesymptoms of nausea, red itchy burning eyes, tinnitus, headaches,sore throat, fogginess, pressure in her head, anxiety, andinflammation of the muscles in her neck and head. All of thesesymptoms were found to have resolved when she was away fromher work for any significant period of time, and all of which wasrecorded by Dr. Neily and submitted in the form of letterscontaining medical opinions, rendered on her behalf.

[53] At paragraphs 102 to 105 the panel provides their reasons for deciding toaccept the evidence of Ms. Cormier's family physician over the evidence of theBoard's medical advisors:

102. In our respectful view, Dr. Neily was and continues to be in amuch better position than the Board doctors to assess the Worker'sclaim. Further, he appears to have been much more thoroughlyapprised of the information in relation to the Worker's claim. Hesaw the Worker no less than 21 times since 1999 and took detailednotes each time. The Board doctors conducted a paper review ofthe file on the basis of his notes and findings and of those notes andfindings that he had first opportunity to review with variousspecialists. They concluded that there was ‘no objective physicalfindings that would support a diagnosis of building relatedhypersensitivity.’

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103. Given that Dr. Carruthers and Dr. O'Brien, to the best of theknowledge of this Panel, are of equal qualification to make orrefute a diagnosis of environmental sensitivity; in light of the factthat Dr. Neily would not likely have any potential bias betweenone diagnosis and the next whereas physicians in the employ of theBoard could reasonably been seen to have a slight bent towards afinding that might help their employer; the fact that Dr. Neilyphysically saw the Worker and was in a better position to make adiagnosis; this Panel finds that the medical evidence weighs morein the Worker's favor than not, or at least that there is so littledifference that the Worker deserves the benefit of the doubt, as sheis entitled to pursuant to the above noted policies and POL04-17.

104. In relation to the evidence of Dr. Sweet and the HEPA report, thePanel finds that it is of little relevance. This affliction is alleged tohave begun when the Worker was employed at [personalinformation]. The HEPA report was conducted [personalinformation]. There is evidence on the file to indicate that theremay have been mold in [personal information], and in fact theoriginal case worker found this to have been the case. There is alsoliterature on the file which tends to indicate that environmentalsensitivity results from an acute exposure to a substance whichdecreases the patients subsequent tolerance to these substances. Assuch, the relevant workplace study would have been of [personalinformation], at the time when the Worker originally began toexperience symptoms. Further, a person suffering fromenvironmental hypersensitivity is hardly the average worker orpatient.

105. In short, in our view there is too little medical evidence before usto refute the Worker's claim, particularly where her diagnosis wasmade and has been reaffirmed by Dr. Neily, who has no interest inthis matter other than to see his patient's condition improve.

[54] These extensive quotations from the reasons of the WCAT panel are necessaryto appreciate the entire reasoning process engaged in by the panel. Thereasonableness of the Board's unease or apprehension as to WCAT's bias is to beconsidered against the backdrop of the entire reasons.

[55] It is clear from these passages of the decision and from the decision as a wholethat the panel preferred the evidence of Ms. Cormier's family doctor over that of theBoard medical advisors because he was in a much better position to assess hercondition, having seen and/or examined her 21 times. The panel considered that theBoard's medical advisors and Ms. Cormier's family physician were equally qualified toassess a patient for environmental sensitivity. The panel also concluded that the familyphysician was not biased toward his patient and that he could provide an independentmedical opinion.

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[56] The panel questioned the independence of the Board's medical advisorsbecause of their employment with the Board. This was not, however, the only reason the panel rejected the evidence of the Board's medical advisors. More significantly,the panel concluded that because the Board's medical advisors had never examinedMs. Cormier, they were not in as good a position to assess her condition as was herfamily physician.

[57] Whether the panel erred in assessing the evidence in this manner is not beforethe Court on this appeal. Furthermore, the Court is not assessing the sufficiency of theevidence upon which the WCAT panel made its decision. The only issue before theCourt is whether in doing so, the panel's collective mind was closed to the evidence ofthe Board's medical advisors and other witnesses who provided evidence in support ofthe Board's decision. A complete reading and analysis of the panel's reasons, absent afocus on the impugned words in paragraph 103, can lead to no other conclusion thanthat the panel fully considered the evidence of the Board's medical advisors and gavereasons for rejecting it other than the view that the advice of the medical advisorsmight have lacked independence.

[58] Context, beyond the reasons of the panel is very important in the application ofthe test for bias or lack of impartiality on the part of the tribunal. It is necessary toappreciate the context within which the Board, its medical advisors and WCATfunction.

[59] Board medical doctors perform an advisory or consulting role as employees ofthe Board. See: T. Ison: Workers' Compensation in Canada, 2nd ed. (TorontoButterworths, 1989) at p.215 paragraph 9.8.2 and at p. 216. Board medical advisorsprovide opinions by way of expert medical advice to the adjudicators within the Board- entitlement officers and internal reconsideration officers – who adjudicate and makea decision based on all the evidence before them. The Board's medical advisors arenot the adjudicators.

[60] Implicitly, like any expert and like any professional person, the medical doctorsemployed by the Board provide their opinions objectively and based on theirprofessional expertise. This does not mean, however, that a court or tribunal mustaccept the evidence of the expert as conclusive of the issue upon which they haveopined. Nor does it mean there is a presumption in favour of the court or tribunalaccepting that evidence.

[61] The Board, as a tribunal is in a unique position vis-a-vis other quasi-judicialtribunals. The Board not only has the responsibility of adjudicating the claims of theinjured worker, it has the additional responsibility of protecting the compensation

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fund. This unique position of the Board affords it the right to assume a similarlyunique position when there is an appeal from a decision of WCAT. It has the status ofa party before WCAT entitled to argue the merits of its decision. Usually, on judicialreview a tribunal is limited to defending its jurisdiction and not the merits of itsdecision. See: s. 56(23) of the Act, and Prince Edward Island (Workers' CompensationBoard) v. MacDonald 2007 PESCAD 4.

[62] In MacDonald at paragraph 35, it was stated on behalf of this Court:

[35] In considering a claim made by a worker or the employer, theBoard is not adjudicating as an impartial arbiter of the interests oftwo or more parties. There is no suit, action, controversy or disputebetween two or more parties upon which the Board has been askedto adjudicate. There is the Board and the claimant. In many ways,one might view the role of the Board at this stage as moreadministrative than it is adjudicative.

[63] Furthermore, the Board is entitled to appeal the decision of WCAT to this Courton its merits and to participate fully in that appeal by presenting argument as to meritsof the WCAT decision. See: Prince Edward Island (Workers Compensation Board) v.MacDonald, supra.

[64] The role of WCAT is to review the decision of the Board on a standard ofcorrectness. In doing so, WCAT is entitled to consider all the evidence before theBoard including the evidence of the Board's medical advisors. In reviewing thedecision on this standard, WCAT is entitled to accept or reject the evidence and cometo a different conclusion than the Board.

[65] In the result, I am satisfied a fully informed person, thinking the matter through,would not conclude the WCAT panel acted unfairly. With the entire context in focusthe panel's comment that the Board's medical advisors would show a "slight bent"toward the Board does not give rise to a reasonable apprehension nor does it create areasonable unease that the panel was in fact biased. From a practical perspective,some flexibility in the application of the test for determining bias must be invoked inthe circumstances of this case, rather than accede to the Board's unreasonable level ofunease that the panel was predisposed to the evidence of Ms. Cormier's familyphysician to the exclusion of any consideration of the evidence of the Board's medicaladvisors.

[66] I would dismiss the appeal and make no order as to costs.

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Justice John A. McQuaid