Trucker loses Prince Edward Island residency argument

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The P.E.I. Court of Appeals has dismissed an application by a truck driver for leave to appeal a decision of the Workers Compensation Appeal Tribunal on a question of law.

Robert Finbar Brown had sought to appeal a decision of the tribunal which upheld a Workers Compensation Board decision that he was not a resident of P.E.I. at the time of an accident in 2010, and therefore not eligible to file for compensation.

Chief Justice David Jenkins, in a decision concurred with by Justice Michele Murphy and Justice John Mitchell, agreed with the ruling of the tribunal.

Jenkins said there was no basis for contemplating that the court could find on appeal that the decision of the appeal tribunal was unreasonable.

“The threshold requirement for the appeal to be allowed to proceed is not met,” Jenkins wrote in his decision.

“In other words, in my view, the grounds are not of sufficient substance to be capable of convincing the court to allow the appeal.”

The Workers Compensation Act provides for an appeal to the Court of Appeal on a question of law or jurisdiction.

The issue in this application was whether there was an arguable case the appeal tribunal made a reviewable error in its consideration of the term “residence” under section 7(5)(b) of the act under which the board operates.

“... and more particularly, when it determined that Mr. Brown is not a “resident” of the province for the purpose of qualifying to apply for compensation out of the Accident Fund.”

Brown was employed as a transport driver by a company operating out of Woodstock, N.B. on Feb. 10, 2010 when the truck that he was driving went off the road in the state of Maine. He claimed workers compensation benefits from both the P.E.I. and New Brunswick boards.

The New Brunswick board refused his claim for compensation.

In P.E.I., the board first entertained Brown’s claim but it soon questioned his residency and his qualification to apply for benefits at all.

Ultimately, the board found Brown’s residence was not within this province on the date of the accident and denied his claim.

Upon appeal, the appeal tribunal upheld the decision of the board.

Brown’s claim before the board, then before the appeal tribunal, and then before the Court of Appeal, is that he was qualified for coverage under the act because he was a resident of this province at the time of the accident.

Jenkins noted a great many evidentiary factors came under consideration by the board and the appeal tribunal.

At the time of the accident Brown had a residence in the state of Washington and a driver’s licence for that state. He also had a spouse residing in the state of California and a U.S. passport.

Brown was born in P.E.I.  and had a sister living here with whom he sometimes stayed on weekends two to three days per month when his trucking duties involved him dropping off and picking up loads within this province.

In 2009 his income tax T4 slips indicated his residence as Washington.

He paid Canadian income tax and his tax return stated P.E.I. as his residence.

Upon investigating the claim, the board determined on balance that Brown was not a resident of this province at the date of the accident.

The appeal tribunal made a similar finding on appeal.

Brown asserted the board did not properly investigate his claim and that the appeal tribunal did not properly consider the evidence.

Jenkins said in his view the board appears to have conducted a very thorough investigation, and the appeal tribunal appears to have considered all of the evidence that was before the board and the internal reconsideration officer before making its decision.

Brown attempted to raise a charter argument based on equality rights but the court found there was not sufficient factual basis upon which to found a challenge to the charter.

Organizations: P.E.I. Court of Appeals, Workers Compensation Board, Accident Fund New Brunswick board

Geographic location: Prince Edward Island, California, Woodstock Maine New Brunswick State of Washington U.S. Washington

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  • UPWESTER
    January 06, 2014 - 14:49

    I can only assume that these learned judges gave the tax department instructions to return all taxes he has paid since he is a non-resident and therefore should not be paying income taxes to Canada and PEI.