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Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499

Areas of Law: 

Administrative law; Jurisdiction; Patent unreasonableness; Workers’ compensation

~It is in error for an administrative tribunal to interpret its power to reopen an appeal to cure a jurisdictional defect as extending to include a review to determine whether its own decision was patently unreasonable.~

BACKGROUND: The Appellants were all laboratory technicians who developed breast cancer while employed at Mission Memorial Hospital between 1970 and 2004. They brought workers’ compensation claims, which were denied at the first level of assessment on the basis that the workplace had not been shown to have caused or materially contributed to their cancer. The Review Division also denied the claims, but a three member panel at the Workers Compensation Appeal Tribunal (WCAT) found that the burden of proof had been met in establishing a causal connection. The Respondent Fraser Health Authority (FHA) sought a reconsideration of this decision on the basis of patent unreasonableness. A WCAT panel denied the application for reconsideration. FHA then sought judicial review of WCAT’s second decision. It sought a declaration that WCAT erred in finding the cancer to have been an occupational disease due to the workers’ employment, an order that the original decision of WCAT be set aside and the decision of the Review Division confirmed, an order that the reconsideration decision be set aside, and in the alternative an order that both WCAT decisions be set aside and the matter remitted to a new WCAT panel with appropriate directions. The chambers judge noted that the parties were in agreement that the standard of review for the original decision was patent unreasonableness, while the standard of review for the reconsideration decision was correctness. The chambers judge did not address whether WCAT had the authority to reconsider the original decision for patent unreasonableness. He found the original decision patently unreasonable on the basis that there was no evidence to find causation, and found the reconsideration decision incorrect. He set aside both decisions and remitted the matter back to WCAT.

APPELLATE DECISION: The Court of Appeal sat a panel of five judges. Mr. Justice Chiasson for the majority dismissed the appeal. He considered the reconsideration decision a nullity because it was not authorized by the legislation. WCAT interpreted the common law power to reopen an appeal to cure a jurisdictional defect as “authority to set aside one of its decisions”, and considered the standard of review set out in s. 58 of the Administrative Tribunals Act (ATA) applicable. The legislation provides no parameters for a review of the merits of a WCAT decision by the tribunal itself. WCAT wrongly equated the common law power to reopen an appeal to cure a jurisdictional defect with the power of a court on judicial review. The actual review process at WCAT should be that the chair appoints a panel, which decides the appeal, and the panel may correct clerical errors in a decision or may reopen the appeal to cure a defect of pure jurisdiction. The chair may refer a final decision to WCAT for reconsideration if there is new evidence; otherwise, the original decision is subject to judicial review. In this case, WCAT was not authorized to conduct a review to determine whether its own decision was patently unreasonable. On the merits of the original decision, Chiasson JA agreed with Goepel JA’s concurring reasons. While some evidence existed to support the original decision, it was insufficient. A decision is patently unreasonable when the defect is obvious, and in this case the only support for the original decision was an unexplained statistical anomaly.

Justices Newbury and Bennett dissented and would have allowed the appeal. Madam Justice Newbury considered other appellate decisions in which both an original tribunal decision and a reconsideration were at issue. She also considered whether “jurisdictional defect” includes not only true questions of jurisdiction but also excesses of jurisdiction such as errors of fact, law, or discretion offending the applicable standard of review. Counsel for WCAT argued that patent unreasonableness is a type of jurisdictional defect and thus within its jurisdiction to reconsider. Newbury JA accepted WCAT’s submission and commented that the phrase “jurisdictional defect” in the ATA predates Dunsmuir and should not be interpreted in light of it. The broad meaning of jurisdiction in the constitutional sense prevails. To deny WCAT’s practice of reconsidering its decisions for patent unreasonableness would increase the necessity for court proceedings and would be contrary to the purpose of the legislation and the principles of administrative law. Thus, WCAT had the authority to reconsider as it did. It was not open to the reviewing court to weigh the evidence before WCAT in the original decision, but only to determine whether some evidence existed. In that decision, WCAT was not patently unreasonable in rejecting the notion that it was required to have proof of causation to the level of scientific certitude, and in resolving the uncertainty in the worker’s favour.

ONPOINT’S “OUR VIEW”: By Melania Cannon, OnPoint Legal Research Law Corporation

“The principal issue in this case was whether a tribunal has the jurisdiction to review its own decision on a standard of patent unreasonableness. The Workers’ Compensation Appeal Tribunal (WCAT) applied s. 58 of the Administrative Tribunals Act (ATA) to reconsider its own decision on the standard of patent unreasonableness. The majority on appeal considered WCAT’s adoption of s. 58 to be invalid, stating that the ATA does not apply to it. Rather, the authority to reconsider a decision derives from ss. 253.1 and 256 of the Workers’ Compensation Act (WCA). Section 253.1(5) provides that the section must not be construed as limiting the tribunal’s ability at the request of a party has been held to derive from the 1989 Supreme Court of Canada’s decision in Chandler v. Alberta Association of Architects, in which the majority held that an administrative tribunal may revisit a decision only if authorized by statute or if there has been a slip or error within certain exceptions. In 2003, the Court of Appeal in Powell Estate v. British Columbia (Workers’ Compensation Board) held that the Appeal Division of the Board, which predated WCAT, had the jurisdiction following Chandler to reconsider a case to correct its own jurisdictional error. Despite jurisprudence to suggest that the common law power exists outside of the statutory regime, the majority in this case framed it as being limited to the same role as s. 253.1(5). This seems to render the common law power redundant in the face of the statute.

The majority also took the position that a jurisdictional defect is limited to a matter of true jurisdiction, while a question of reasonableness falls within jurisdiction. The dissent strongly disagreed. The dissent drew on the Supreme Court of Canada in Pushpanathan, where the majority cited the 1981 decision in Crevier v. Quebec (Attorney General) with respect to whether a statutory tribunal could be immunized by provincial legislation from review on questions of jurisdiction. In those cases, “jurisdiction” was not defined as narrowly as “true jurisdiction” was in Dunsmuir. Just as the standard of patent unreasonableness has survived Dunsmuir due to its inclusion in the ATA, the dissent maintained that the phrase “jurisdictional defect” in s. 53 of the ATA has not been “diminished” post-Dunsmuir. Citing Groberman JA’s reasons for the Court in CSWU, Local 1611 v. SELI Canada Inc. 2011 BCCA 353, the dissent noted that Canadian courts have accepted that some errors in the course of a hearing will be jurisdictional in nature, and that unreasonable errors of law or fact can be errors of jurisdiction. In the dissenting judges’ view, patent unreasonableness as preserved in the ATA constitutes an error of jurisdiction, and is thus a jurisdictional defect for the purposes of s. 53 of the ATA. The difficulty for the dissent is that the line of reasoning set out in CSWU goes to the ability of the court to overcome a privative clause in reviewing a tribunal’s decision, and not to the tribunal’s own power to reconsider or reopen a decision under s. 53. Section 53, of course, is also mirrored by s. 253.1 of the WCA and, if both are taken to apply to WCAT’s power to review its own decisions (a position not endorsed by the majority), the dissent appears to be embarking on a novel and confusing path by applying the analysis in CSWU to the ATA, rather than considering the WCA in its legislative context.

Beyond the question of jurisdiction, the majority and dissent also disagreed on what amounts to “some evidence” in determining whether the original WCAT decision was patently unreasonable. If there was “no evidence” on which the decision could have been made, the dissent held, it must be said to be patently unreasonable. In this case, the only evidence to support the connection between the workers’ cancer and the workplace was the statistically higher instance of breast cancer among these workers than among workers generally. This was characterised by experts as a statistical anomaly. The dissent was satisfied that even the statistical anomaly constituted some evidence, such that the “no evidence” requirement would not be met and the original decision was not patently unreasonable. It was sufficient that the WCAT majority considered this evidence to satisfy the de minimis test and, all evidence being equal, found for the workers as required by statute. The majority allowed that there was some evidence to support the original decision, but held that something more was required when the only evidence was the statistical anomaly. At the same time, the majority noted that a decision is patently unreasonable when the defect is openly, evidently and clearly wrong. It seems that even if one were to accept the dissent’s position that any evidence, however dubious, is sufficient to establish that there is “some evidence”, the broader test of whether there is an obvious defect would suffice to determine that the decision was patently unreasonable. To find otherwise would be to leave any decision by the tribunal, based on the most spurious evidence, beyond the scope of the courts’ review.”

COUNSEL COMMENTS provided by Don Crane, Counsel for the Appellants

“This important decision will be of interest to the WCB community, and to administrative law enthusiasts. It strikes down the right of the Workers’ Compensation Appeal Tribunal (WCAT) to reconsider its own decisions on the basis of jurisdictional error, and it potentially broadens the scope of judicial review, to permit reviewing judges to re-weigh the evidence that was before the tribunal.

The process by which the court struck down WCAT’s right of reconsideration was the result of an unusual instance of judicial activism, and in my view it was quite unsatisfactory. Several days prior to the first hearing date of this appeal the Court sent a memo to the parties, simply asking them to address the implications of 3 earlier decisions of the Court. Counsel correctly deduced from this that the Court was raising, among other issues, the legality of WCAT’s reconsideration process. In view of the expanded issues on appeal, the first hearing date was adjourned, several new parties intervened, and a 5-justice division was constituted to hear the appeal.

None of the parties to the appeal, nor the interveners, saw fit to challenge WCAT’s power of reconsideration, and the issue was of no practical significance to the appeal. In short, there was no lis between the parties on this issue.

Because of this, the first hint of the argument against WCAT’s reconsideration power came in the form of questions from certain of the judges at the hearing. However, the avenue by which the majority of the court would ultimately find that WCAT has no power to reconsider its decisions on jurisdictional grounds was not fully revealed to the parties until the decision was released.

WCAT has been exercising a reconsideration power to review for jurisdictional defects for approximately 10 years, during which time it has adjudicated about 700 applications, and has allowed over 100 of them. It has provided an accessible process by which workers can have a decision reviewed without having to retain counsel to take a judicial review application. However, the reconsideration process does not in any manner preclude a party to an appeal from applying for a judicial review.

While recognizing the general right of the courts to control the processes of the so-called inferior tribunals, I would suggest that it would have been preferable for the Court to have waited until the issue arose as a dispute between parties to an appeal. Counsel would then have been better equipped to address this complicated issue. The fact that the court split 3:2 reveals that the issue of WCAT’s jurisdiction to reconsider its own decisions is not free from doubt.

The other important feature of the case is its departure from the principle that reviewing courts must not re-weigh the evidence before the tribunal. Courts frequently cite the passage from Speckling v. British Columbia 2005 BCCA 80, that “(a) decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not: Douglas Aircraft Co. of Canada Ltd. v. McConnell, [1980] 1 S.C.R. 245, and Board of Education for the City of Toronto v. Ontario Secondary School Teachers’ Federation et al (1997), 144 D.L.R. (4th) 385 (S.C.C.)”. This was the approach taken by the two dissenting members of the Court, who would have allowed the appeal on the basis that there was some evidence that the cancers were caused by exposure to carcinogens in the workplace, and that WCAT had the exclusive right to weigh that evidence.

The majority, however, found that while there was indeed some evidence of workplace causation, the evidence was so insubstantial that it could not reasonably have been relied upon by WCAT. In effect, the majority judges re-weighed the evidence, and substituted their own view of its weight for that of the tribunal. It is reasonable to think that this approach will pave the way for future judicial review applications in which the courts are being invited to second-guess a tribunal’s assessment of the weight of the evidence.”

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