Dennis McGeady, and the Alberta Union of Provincial Employees v. Her Majesty the Queen in Right of Alberta

(Alberta) (Civil) (By Leave)


Administrative law - Boards and tribunals, Jurisdiction, Standard of review, Legislation, Interpretation.


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Administrative law – Boards and tribunals – Jurisdiction – Standard of Review – Legislation – Interpretation – Can administrative tribunals use equitable remedies to prevent the enforcement of provisions of their home statute in appropriate circumstances – What positive disclosure obligations are there on an employer at the time of hire.

During the period that he was a member of the Edmonton Police Service the applicant injured his knee and subsequently developed osteoarthritis. After 33 years in the service he resigned his position to accept an offer of employment as an investigator with the Alberta Serious Incident Response Team. Within the ninety-day period immediately prior to the commencement of his new job, the applicant had both his knees injected with Synvisc. Over a year later, and after unsuccessful knee replacement and other surgeries, the applicant applied for long term disability benefits and was told that the Synvisc injections had disqualified him pursuant to s. 6(1) of the Public Service Long Term Disability Continuance Plan Regulation, Ministerial Order 8/1998 (unpublished). That provision states, inter alia, that “[b]enefits will not be paid for any medically documented injury or illness for which an employee received medical services, supplies, or any medication prescribed by a physician during the 90 days immediately preceding the effective date of permanent or temporary employment”. The applicant had not worked at the job for the two consecutive years necessary to be exempt from the provision.

After an unsuccessful appeal to the first appeal level, the applicant appealed to the Long Term Disability Second Level Appeal Board (the “Board”). The Board “decided to make a decision independent of the regulations”. It accepted that had the applicant had adequate exposure to the benefits Plan and regulations, he would not have accepted the position. Taking “a broader view” it disagreed with the denial of benefits, finding that “[t]o do otherwise would result in an unfair and unjust decision and not in keeping with the intent of the LTDI Benefit Plan”. The respondent successfully applied to the Court of Queen’s Bench of Alberta for an Order quashing the decision and remitting the matter to the Board for a rehearing. The Court held that the Board did not have the authority to grant an equitable remedy which conflicted with the clear wording of the regulation. An appeal to the Alberta Court of Appeal was dismissed.