SUPERIOR COURT

 

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTRÉAL

 

No:

500-17-020409-044

500-17-020408-046

500-17-020407-048

 

DATE:

November 2, 2005

______________________________________________________________________

 

IN THE PRESENCE OF:

THE HONOURABLE

 CLAUDINE ROY, J.S.C.

______________________________________________________________________

 

 

NAGWA GUIRGIS

Petitioner

v.

COMMISSION DES LÉSIONS PROFESSIONNELLES

and

COMMISSION DE LA SANTÉ ET SÉCURITÉ AU TRAVAIL

Respondents

 

 

______________________________________________________________________

 

JUDGMENT RENDERED ORALLY ON OCTOBER 19, 2005

______________________________________________________________________

 

[1]                Mrs. Guirgis is asking the Court to quash four decisions rendered by the Commission des lésions professionnelles (the “CLP”):

·                    the decision of Commissioner Cuddihy, rendered on September 13, 2000;

·                    the decision of Commissioner Landriault, rendered on February 27, 2003; and

·                    the two decisions of Commissioner Lacroix, rendered on March 1st, 2004.

FACTS

[2]                Mrs. Guirgis had two accidents[1] at work where she injured her ankle and her back.

[3]                Mrs. Guirgis received indemnities from the Commission de la santé et de la sécurité du travail (the  “CSST”) for these injuries.

[4]                In 1996, the Commission des accidents du travail et des lésions professionnelles ("CALP") determined that Mrs. Guirgis sustained permanent physical impairment. This impairment prevent her from returning to her former job as store clerk[2].

[5]                The file was returned to the CSST in order to establish a personal rehabilitation program.

[6]                After two meetings with a rehabilitation counsellor, the CSST asked Mrs. Guirgis to see an occupational therapist to evaluate her limitations for work in order to establish a rehabilitation program suitable for her.

[7]                In January 1997, Mrs. Guirgis refused to see the occupational therapist because she was under the impression that this visit would constitute a re-evaluation of the permanent physical impairment determined by her doctor. The CSST claims it was never its intention to re-evaluate the permanent physical impairment, but that it must, according to the law, determine which employment would be suitable for Mrs. Guirgis, taking into account her limitations. Because of her refusal to see an occupational therapist, the CSST suspended her income replacement indemnity. This decision was confirmed in revision. Appeal was denied in September 2000 by the CLP, and revision of this appeal was also denied by the CLP in March 2004.

[8]                These are two of the decisions of the CLP which the Superior Court is being asked to examine.

[9]                Furthermore, in July and November 1998, the CSST wrote to Mrs. Guirgis to resume the rehabilitation process, hoping to put an end to the deadlock in her file. The CSST asked Mrs. Guirgis to supply information pertaining to employment she would be able to perform. Mrs. Guirgis did not supply the information.

[10]            Mrs. Guirgis asked for a revision of these letters. Because the letters are not considered to be “decisions” by the CSST, the file was closed from an administrative standpoint and this process was confirmed by the CLP in a March 2004 decision. The Court is also being asked to quash this decision.

[11]            In December 1998, further to the refusal of Mrs. Guirgis to collaborate, the CSST decided that she was deemed fit to occupy a suitable employment of cashier. This decision was confirmed in revision. The CLP, in appeal, decided that the rehabilitation program established by the CSST was in accordance with the provisions of the Act respecting Industrial Accidents and Occupational Diseases[3] (the "Act"). The Court is also being asked to review this decision.

questions in issue

[12]            In the three motions, Mrs. Guirgis complains that the CLP and the CSST acted without jurisdiction or in excess of jurisdiction, did not follow the law and violated the rules of natural justice. Mrs. Guirgis would like the CLP decisions to be quashed.

[13]            It is not easy to summarize Mrs. Guirgis' arguments as the three motions total approximately 200 pages. Notably, she claims it is not within the power of the CSST to send her to see an occupational therapist or to determine a suitable employment. She also complains that the CLP violated the rules of natural justice during the hearings.

DISCUSSION

[14]            The jurisdiction of the Superior Court in judicial review cases is very limited.

[15]            In order to decide which standard of judicial review should apply, the Superior Court has to make a pragmatic and functional analysis[4].

[16]            Since different standards may apply to different questions, the Court will first list the questions before the CLP.

[17]            There were three issues raised in Commissioner Cuddihy's decision of September 13, 2000:

·                    the calculation of the income replacement indemnity;

·                    the right of the CSST to suspend the income replacement indemnity by reason of the refusal of Mrs. Guirgis to see an occupational therapist; and

·                    the right of Mrs. Guirgis to receive certain indemnities for a few specific days (the decision of the CLP was favourable to Mrs. Guirgis on this issue).

[18]            Three issues were raised in Commissioner Landriault's decision of February 27, 2003:

·                    the opportunity to suspend the hearing pending administrative "revision" of the July and November1998 letters;

·                    the conformity with the Act of the professional rehabilitation program established for Mrs. Guirgis; and

·                     the determination that an employment as cashier is a suitable employment for Mrs. Guirgis.

[19]            Two issues were raised in Commissioner Lacroix’s decisions of March 1, 2004:

·                    the existence or absence of a substantive defect in Commissioner Cuddihy’s decision of a nature likely to invalidate the decision;

·                    the appropriateness of the CSST decision to close the file regarding the letters sent to Mrs. Guirgis in July and November1998.

Pragmatic and Functional Analysis

[20]            The object of the Act is to provide compensation for employment injuries and the consequences they entail for beneficiaries[5]. The legislator has indicated its intention to allow the CLP to render final decisions on issues arising out of the interpretation of the Act[6].

[21]            The CLP is protected by a full privative clause and a finality clause[7].

[22]            The CLP has a high level of expertise concerning issues relating to rehabilitation plans, suitable employment and the right to an income replacement indemnity. These questions are at the heart of its jurisdiction. The expertise of the CLP, on these issues, has been confirmed in many judgments[8].

[23]            All issues raised in the hearings, except for the one relating to the existence or absence of a substantive defect in Commissioner Cuddihy’s decision of a nature likely to invalidate the decision, were mixed questions of fact and law and fell specifically within the field of expertise of the CLP. They required the interpretation of different sections of the Act and their application to the facts found in the files.

[24]            Taking all criteria ofthe pragmatic and functional analysisinto consideration, the Court will apply the standard of patent unreasonableness to these questions.

[25]            The CLP took great care to consider all the issues raised in front of it, the reasoning of the commissioners being explained in detail in their decisions. The Court finds that the decisions of the CLP on these questions are not patently unreasonable, not even unreasonable.

[26]            Therefore, the Court concludes that it should not interfere with the decisions on these issues.

[27]            As to the question relating to the decision of Commissioner Lacroix on the absence of a substantive defect in Commissioner Cuddihy’s decision of a nature likely to invalidate the decision, the Court will apply the standard of reasonableness simpliciter. This issue was recently decided by the Court of Appeal in csst v. Fontaine[9]. The issue was analyzed thoroughly, considered carefully and resolved by the commissioner in a reasonable manner. The Court concludes that it should not interfere with this decision either.

Issues relating to Natural Justice

[28]            Mrs. Guirgis also raised issues relating to natural justice including the limitations imposed by the Commissioner on her examination of witnesses, the discussions between the attorney for the CSST and her client during the hearing and the lack of opportunity for her to cross examine an employee of the CSST, Mrs. Ginette Bertrand, during the hearing in front of Commissioner Cuddihy.

[29]            During the hearing, Mrs. Guirgis drew the attention of the Court to extracts of the transcripts of the hearings which, in her view, are problematic. The Court finds no evidence of violation of the rules of natural justice in the extracts quoted. Mrs. Guirgis was given the opportunity to be heard, had the opportunity to present her evidence, to cross examine witnesses of the CSST who testified and to present her argument. Reasons were given for each of the questions decided.

[30]            As to the question of the possibility to cross examine Mrs. Ginette Bertrand, the CSST agent, during the hearing in front of Commissioner Cuddihy, the Court finds that if Mrs. Guirgis wanted the witness to testify, she should have sent a subpoena to ensure her presence at the hearing.

[31]            Mrs. Bertrand was in fact a witness who was supposed to testify at the request of the CSST but who was unavailable to attend the hearing. There is no evidence that Mrs. Guirgis, in view of this situation, asked for an adjournment of the hearing in order to examine Mrs. Bertrand.

[32]            Mrs. Guirgis argues that she did not send a subpoena because Me Plasse told her that the agent would come to the hearing. There is no evidence to support this argument. The only evidence in the file concerning this issue is the comment made by Commissioner Lacroix at par. 39 of his decision and it is exactly to the contrary of Mrs. Guirgis' argument. Mrs. Guigis had the burden of proving the alleged violation of natural justice but she did not provide the Court with the transcript of the hearing in front of Commissioner Cuddihy. She first produced in the file extracts of the hearing. These extracts were struck from the record by Justice Lagacé for failure to produce the whole transcript, after Mrs. Guirgis was given ample opportunity to do so.

[33]            The Court concludes that there were no violation of the rules of natural justice.

[34]            The CSST is not asking for costs but the CLP is.

For these reasons, the COurt:

DISMISSES all motions;

WITH COSTS in favour of the Commission des lésions professionnelles only.

 

 

__________________________________

CLAUDINE ROY, J.S.C.

 

Mrs. Nagwa Giurgis

 

Me Jacques David

Levasseur Verge

Attorney for Commission des lésions professionnelles

 

Me Micheline Plasse

PANNETON LESSARD

Attorney for the Commission de la santé et de la sécurité au travail

 

Dates of hearing:

October 18 and 19, 2005.

 


[1]    One, on September 30, 1996 and one, on October 3, 1996.

[2]    Commis à l’étalage.

[3]    R.S.Q., c. A-3-3.001.

[4]    Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 23.

[5]    Section 1 of the Act.

[6]    Domtar inc. v. Québec (Commission d'appel en matière de lésions professionnelles), [1993] 2.R.C.S. 756, p. 774.

[7]    Sections 429.49 and 429.59 of the Act.

[8]    See for example General Motors du Canada v. Bousquet, [2003] C.L.P. 1377 (C.A.).

[9]    C.A. 500-09-014608-046, 2005-09-07.

AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.