The appeal of a worker (“Gauthier”) of the decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission, wherein they held that the average earnings he lost through a work-related injury should be calculated considering the period during which he was not receiving any employment income, was dismissed.

Administrative law – Workers compensation – Statutory provisions – Average earnings – Method of calculation – Judicial review – Standard of review – Correctness

Gauthier v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2003] N.B.J. No. 139, New Brunswick Court of Appeal, April 10, 2003, Drapeau C.J.N.B., Deschênes and Robertson JJ.A.

The New Brunswick Court of Appeal reviewed the decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission according to the correctness standard of review dictated by the decision in Gallant v. Workplace Health, Safety and Compensation Commission (N.B.) and Keddy v. Workplace Health, Safety and Compensation Commission (N.B.) et al (2002), 247 N.B.R. (2d) 284 (C.A.), and dismissed the appeal.

The court reviewed the Workers’ Compensation Act, R.S.N.B. 1973, c. W-13 wherein the definition of the expression “average earnings” read:

[A]verage earnings’ means the daily, weekly, monthly or regular remuneration that the worker was receiving at the time of the injury … or receiving previously, or at the time of the loss of earnings, … as may appear to the Commission best to represent the earnings of the worker, … .

The Appellant argued that the Commission should have to choose which form of the remuneration alternatives listed in the Workers’ Compensation Act to use. The court concluded that the Commission was not required by law to choose one or the other of the remuneration alternatives listed in section 38.1(1) of the Act in the definition of “average earnings” to determine what remuneration best represented the earnings of the worker. Rather, the Commission could consider one or more of the alternative remuneration in reaching its conclusion on the subject, and would therefore be at liberty to consider the worker’s work history and earnings pattern in discharging its mandate.

In dismissing the appeal, the New Brunswick Court of Appeal held further that in determining the average earnings, the Commission may, in appropriate circumstances, take into consideration periods during which the remuneration received by the worker is nil. They went on to say that so long as the Commission’s decision was not patently unreasonable, it would withstand judicial review pursuant to the decision in Herbert v. Workplace Health, Safety and Compensation Commission (N.B.).

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