By Jeffrey R. Smith
A Nunavut worker seeking additional workers’ compensation benefits has no statutory right
of appeal beyond the workers’ compensation scheme and he filed his application for
judicial review late anyway, the Nunavut Court of Appeal has ruled.
The worker, who was employed as a carpenter and supervisor in Nunavut, was injured in a
workplace accident in March 2014 and required medical treatment. He applied for workers’
compensation benefits and received 92 days of temporary disability benefits. He had back
surgery in 2017.
After his surgery, the worker sought more benefits, including for a permanent partial
disability. In July 2021, the review committee of the Nunavut and Northwest Territories
Workers’ Safety and Compensation Commission (WSCC) ruled that the worker wasn’t
entitled to any further benefits.
The worker appealed the WSCC’s decision, but the Workers’ Compensation Appeals’
Tribunal (WCAT) agreed with the decision, finding that the worker wasn’t entitled to any
benefits after April 2014.
The worker launched an action against the WSCC and WCAT in the Nunavut Court of
Justice in late 2023, arguing that the WCAT’s decision “breaches the rules of natural justice
and exceeds the jurisdiction of the Workers’ Compensation Act (WCA).” However, his legal
counsel asserted that the action was pursued under a statutory appeal mechanism, not as
a judicial review, so the 30-day time limit for filing a judicial review of a decision as outlined
in Nunavut’s Rules of Court didn’t apply.
Workers’ compensation scheme
The WSCC and WCAT moved to strike the claim, arguing that the appeal was filed too late
and no statutory right of appeal exists under the WCA.
The court referred to s. 133 of the WCA, which restricts the ability to challenge decisions by
the WSCC, its review committee, or the WCAT, except in cases where there is “a denial of
natural justice or an excess of jurisdiction.” The WCA specifies that no court may question
or review decisions by the workers’ compensation bodies, nor may it issue injunctions or
other restraining orders against them.
The court noted that Nunavut’s legislature, as in other Canadian jurisdictions, has a
worker’s compensation scheme that determines “an injured worker’s compensatory rights
to a local body of subject experts” and provides “no-fault mutual insurance for workers and
employers.” As a result, the WCA limits a worker’s ability to pursue legal action in the
courts for a work-related injury, as well as the ability to seek remedies beyond the WCAT.
The court determined that the WCA didn’t establish any right of appeal under the workers’
compensation scheme – supported by the fact that other Nunavut legislation specifically
allows a right of appeal in other circumstances.
Out of the court system
“The workers’ compensation scheme is a creature of statute and, typically, when you have
any sort of authority granted to an agency by legislation, there’s an opportunity built into
the legislation for the court to review decisions made by that agency, such as the Public
Service Act, for example,” says Michael Penner, a labour and employment lawyer at Kent
Employment Law in Victoria. “But with the workers’ compensation legislation, they very
specifically created a regime that was intended to keep things out of the court system, and
s. 133 of the WCA makes it very clear.”
“That said, there’s a bit of a catch-all clause in the event there’s some element of a
violation of natural justice in the administration of the WCA – that very narrow issue could
potentially be judicially reviewed,” adds Penner. “But as the court said, there are rules and
time limits for that – there’s an internal appeal process within the workers’ compensation
regime that was missed by the worker or his lawyer, with no explanation as to why it was
missed, and then the worker’s counsel tried go through the back door, but even that wasn’t
filed in time.”
The court found that it was “plain and obvious” that the worker’s court action lacked a
reasonable prospect of success without any right of appeal in court. In addition, the
worker’s legal counsel failed to request an extension of the limitation period for judicial
review under the Rules of Court anyway, instead relying on an argument – a denial of
natural justice – that was unsubstantiated, the court said.
The court granted the motion by the WSCC and WCAT to strike the worker’s action.
Limitation period
What the worker and his counsel should have done at the outset was to acknowledge that
their application for judicial review was outside of the limitation period and then apply for
leave to pursue the matter with some explanation as to why the court should indulge their
application, according to Penner.
“Even though it fell outside of the time limits, that would at least have given them a chance
to, first of all, explain their tardiness and, second, introduce the merits of the application,”
he says. “They would be applying for leave on the basis that there was a triable issue valid
enough for the court to exercise its inherent jurisdiction to hear it, rather than launching
into the application without even seeking that leave – it was doomed from the outset.”
However, the court recognized that the worker had “every reasonable expectation that his
lawyer would prosecute his claim according to the applicable law.” The court found that the
worker’s counsel should have applied to extend the limitation period when he missed the
deadline, rather that pursuing “an esoteric and fanciful argument that the act provided a
right of appeal when it clearly did not.”
As a result, the court struck the worker’s action “without prejudice,” allowing the worker the
opportunity to seek judicial leave to pursue his claim if he chose.
“It’s interesting, because it looks like the defendants pretty much just kept their mouths
shut and watched the train wreck,” says Penner. “It’s a bit counterintuitive that the judge
would make a comment to the worker to say, ‘This is still open to you’ – I’m not sure why he
did that, considering it’s not clear that the material before the court actually raised even the
possibility of some sort of breach of natural justice.”
The court also decided to award no costs against the worker, issuing a rare directive that
his legal counsel not charge him for the costs of the application to provide him “with some
compensation for the delay and prejudice to his claim occasioned by the decisions of his
counsel.”
Following rules, legislation
This case is a reminder for both employers and employees with counsel who may be
looking for “outside-of-the-box” arguments and solutions in a case, that counsel are, first
and foremost, officers of the court, says Penner.
“It’s all well and good to be creative and to think of ways to advocate for clients, but the
court is owed a responsibility that what you’re asking the court to do is viable, and if it’s
subject to a rebuttal by the other party, then so be it,” he says. “It has to have at least a
plausible basis, and you have to also be respectful that if you are asking for something that
falls outside of the rules or legislation, you need to be very transparent and address that
issue at the outset.”
“I don’t know how this particular application [for appeal] was framed, but it would seem
that it glossed over – or at least inadequately referenced – the fact that it was beyond the
time limit set out in the rules, and nor did it appear to seek leave to have that issue
determined as a first step to allow for the application to proceed to the second step.”
See Kevin Murphy v. Northwest Territories and Nunavut Workers’ Safety and Compensation
Commission and Northwest Territories and Nunavut Workers’ Compensation Appeals
Tribunal, 2025 NUCJ 20.
