



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Laursen v. Director of Crime Victim Assistance,









2017 BCCA 8




Date: 20170110

Docket: CA43066

Between:

Christian Laursen

Appellant

(Petitioner)

And

Director of Crime
Victim Assistance

Respondent

(Respondent)






Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Bennett

The Honourable Madam Justice Dickson




On appeal from:  An
order of the Supreme Court of British Columbia, dated
August 12, 2015 (
Laursen v. Director of Crime Victim Assistance
, 2015
BCSC 1413, Vancouver Docket S150574).




Counsel for the Appellant:



J.E. Shragge
K.A. Rose





Counsel for the Respondent:



T. Mason
C. Drake





Place and Date of Hearing:



Vancouver, British
  Columbia

October 11, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2017









Written Reasons by:





The Honourable Chief Justice Bauman





Concurred in by:





The Honourable Madam Justice Bennett

The Honourable Madam Justice Dickson






Summary:

Mr. Laursen appeals the
chambers judges dismissal of his judicial review application after the
Director refused to award him lost earning capacity benefits under the Crime
Victim Assistance Act. He argues that the Directors determination that he was
unemployable at the time of his injury was unreasonable. He also says his
judicial review application is not statute-barred. Held: Appeal allowed. There
is a single reasonable interpretation of employable that requires the
Director to determine whether the applicant has the intent and ability to
become employed in the future. The Director failed to test Mr. Laursens
potential for future employment, rendering his decision unreasonable. Mr. Laursens
judicial review application is not barred by the passage of time because s. 11
of the Judicial Review Procedure Act provides relief from the statutory
limitation period.

Reasons
for Judgment of the Honourable Chief Justice Bauman:

Background

I.

[1]

In the years preceding 2011, Christian Laursen struggled with addiction
issues, polysubstance abuse and insulin dependent diabetes. He had been in
receipt of a disability pension because of these matters since 2002. He was
hospitalized in this regard from 1016 February 2011. On the latter date he was
discharged and referred to detox.

[2]

On 17 February 2011, Mr. Laursen was viciously beaten during the
course of an apparent robbery. He was again hospitalized for a severe head
trauma. On admittance to hospital he tested positive for cocaine and/or
amphetamines.

[3]

Mr. Laursen was treated at Vancouver General Hospital until 22
March 2011. He was admitted to GF Strong Rehab Centre that day and discharged
on 16 May 2011.

[4]

Mr. Laursens acquired brain injury has resulted in permanent
deficits of mobility, mood, speech and cognition. In the opinion of his
treating physician his prognosis is poor, as his cognitive deficit is likely to
deteriorate. He is now permanently disabled from performing any form of
physical work. This includes a position as house monitor at a Vancouver
recovery facility that he was scheduled to commence in April 2011.

[5]

Mr. Laursen applied for and has been in receipt of benefits under
the
Crime Victim Assistance Act
, S.B.C. 2001, c. 38 (the 
Act
).
However, in a series of decisions by adjudicators under that scheme, Mr. Laursen
has been denied an award for lost earning capacity.

[6]

Mr. Laursen brought judicial review proceedings in respect of one
of the decisions in the chain of the original adjudication, reconsiderations
and reassessments of his application; this was the decision of the reconsideration
adjudicator dated 18 May 2012.

[7]

The application for judicial review was brought well beyond the 60-day
time limit set by s. 14.1(2) of the
Act
.

[8]

Mr. Laursens application for judicial review was dismissed by
Justice G. C. Weatherill in reasons indexed at 2015 BCSC 1413.

[9]

He appeals from that order. In the reasons below, I consider the proper
interpretation and application of employability and employable under the
Act
and the
Crime Victim Assistance (Income Support and Vocational Services or
Expenses Benefits) Regulation
, B.C. Reg. 162/2002 (the 
Regulation
).
I also consider the Directors assertion that Mr. Laursens application
for judicial review is statute-barred under the
Act
and that the relief
from the rigors of that limitation apparently offered by s. 11 of the
Judicial
Review Procedure Act
, R.S.B.C. 1996, c. 241 (
JRPA
) is not
available as that section, the Director submits, has been impliedly repealed.

II.

[10]

It is necessary to describe in some detail the Directors consideration
of Mr. Laursens application through the decisions of various
adjudicators.

[11]

It begins with the original adjudication dated 19 April 2011. That
decision awarded Mr. Laursen benefits:

(i)       under
s. 7 of the
Act
for medical services or expenses;

(ii)      under
s. 11 of the
Act
for counselling services or expenses; and

(iii)      under
s. 13 of the
Crime Victim Assistance (General) Regulation
, B.C.
Reg. 161/2002 for repairs or replacement of damaged or destroyed personal
property.

[12]

That adjudicator left for further reassessment a claim for disability
aids under the
Crime Victim Assistance (General) Regulation
.

[13]

With respect to income support benefits (as distinct from an award for
lost earning capacity) the original adjudicator said this:

Mr. Laursen has also
requested benefits for income support. The Crime Victim Assistance Program can
consider income support in circumstances where the victim was employed at the
time of the offence and the injuries have resulted in a loss of employability. Mr. Laursen
was receiving a monthly disability benefit from the Ministry of Housing and
Social Development at the time of his injury. Additional information is being
collected to determine if Mr. Laursen is entitled to a benefit in this
category.

[14]

On 12 October 2011, Marvin Cavanagh, the Executive Director of the
Reaching Out Supportive Recovery Facility wrote in support of Mr. Laursens
claim to this effect:

This letter is confirmation that, Mr. Christian LAURSEN
was hired on to take on the responsibilities of house monitor at 3608 Knight
Street, starting April 2011, receiving five hundred dollars per month. This
$500 would have been an honorarium from our society.

However, this position did not
happen for Mr. Laursen as he was a victim of a severe physical attack,
which ended with him being hospitalized with severe head injuries; therefore,
we had no choice but to fill this position offered Mr. Laursen.

[15]

This letter led to the adjudicators reassessment decision of 19
December 2011. In the words of that adjudicator, referring to the Cavanagh
letter just quoted:

Mr. Laursen currently
requests a reassessment regarding income support in regard to a bone fide offer
of employment.

[16]

The adjudicator continued:

Hospital records obtained indicate that Mr. Laursen was
hospitalized prior to the incident between February 10 and 16, 2011 for
Diabetic Ketoacidosis and polysubstance use. On discharge he was referred to
detox. On February 17, 2011 Mr. Laursen was readmitted to hospital with
a head trauma. The hospital report indicates that cocaine and/or amphetamines
were reportedly used on that date.

As Mr. Laursen was actively using drugs at the time of
the incident, the employer indicates he would not have been suitable for
employment at a recovery facility. Under the circumstances the offer of
employment would have been withdrawn.

Although Mr. Laursen may
have expected to be employed commencing April 2011, it is found that the offer
of employment was invalidated due to his polysubstance use. As the offer of
employment was terminated prior to Mr. Laursen commencing work, he has not
experienced an economic loss and therefore a lost earning capacity benefit
cannot be considered.

[17]

In this decision the adjudicator refers to lost earning capacity
benefits despite the fact that Mr. Laursen requested a reassessment of his
eligibility for income support benefits. It is unclear whether the adjudicator considered
the offer of employment with respect to income support or lost earning capacity
benefits, or both categories of benefits.

[18]

I note the suggestion that the offer of employment was invalidated due
to his polysubstance use and as a result the offer of employment was
terminated prior to Mr. Laursen commencing work This is simply not so.
As Mr. Cavanagh explained in his letter to the Director dated 17 January
2012:

In February I had an employment agreement with Christian
Laursen to be a Monitor in one of my Recovery Houses. The offer of employment
was accepted and it was confirmed he would begin work in April 2011.

Christian Laursen did not begin
work in April 2011 as a result of physical and mental injuries sustained in
Feb. 2011. I did not withdraw my offer of employment from Christian as a result
of his relapse on drugs and would still have extended the employment opportunity
to him if he would have been clean an[d] sober on the start date in April 2011.
I was contacted by someone at Victim Services and questioned about the
employment agreement I had with Christian. I believe this conversation was
misunderstood. I was asked if I would have hired Christian if he had relapsed?
I thought that meant at [the] time of employment but they were referring to
Feb. 2011. I would like to make it clear that Christians relapse on drugs in
Feb. 2011 would not have prevented me from extending him employment, the only
stipulation being he would have to be clean and sober at the start date of
employment. Given the fact that Christian relapsed in Feb. 2011, if he was able
to be clean and sober by April 2011 I would have employed him as agreed upon as
a monitor at one of my Recovery Houses. Christian would have earned $500 per
month in the position of House Monitor commencing April 2011 had he not
sustained injuries as a result of an assault in Feb. 2011. I would be happy to
discuss this matter further and in detail as I do believe this matter was not
clearly discussed and understood in the original telephone conversation with
Victims Services.

[19]

This letter was considered in the adjudicators reassessment decision of
9 February 2012. In the context of the application for income support benefits
the adjudicator there wrote:

The Program finds that due to a combination of Mr. Laursens
history of addiction and the requirements of employment at a rehabilitation
facility, the employer could not guarantee Mr. Laursen employment as it
could not be foreseen whether Mr. Laursen would be clean and sober on
April 1, 2012 [
sic
].

While Mr. Laursen was actively involved in a
rehabilitation program, the medical information on file indicates that he was
using drugs at the time of the assault and therefore he was not capable of
taking the job on any specific date.

Although there was an honourable
intention of employment from the perspective of both Mr. Laursen and the
employer, this intention does not meet the standard of a bona fide offer of
employment as it was conditional on Mr. Laursen[s] sobriety which was
unpredictable under the circumstances.

[20]

However, for the first time the adjudicator went on to expressly consider
the possibility of an award to Mr. Laursen for lost earning capacity.

[21]

The reasons of the adjudicator on this aspect need to be fully set out:

The Crime Victim Assistance Program can consider the
provision of lost earning capacity benefits in circumstances where the victim
was employable but not employed at the time of the injury. The injuries must
have resulted in a long term loss of employability for the victim; a period
generally longer than two years. Employability is defined as the physical and
mental capability of being employed.

In determining eligibility for a Lost Earning Capacity
benefit it must first be determined whether the claimant was employable at the
time of the injury.

Information obtained from the Ministry of Social Development
indicates that Mr. Laursen applied for disability benefits in 2002 due to
drug and alcohol addiction. Mr. Laursens Income Tax assessments indicate
he received limited income from sources other than income assistance in the
years 2006, 2007, [and] 2008 however since 2008 the records available indicate
he was solely dependent on the disability benefit based on his addiction.

Information from the Ministry of Social Development indicates
that Mr. Laursen was eligible for a disability benefit since 2002. His
eligibility for a disability benefit was based on drug and alcohol abuse. As
the medical information indicates that Mr. Laursen was using drugs at the
time of the offence the program cannot consider him employable.

Based on the information available
from the Ministry of Social Development and Canada Revenue Agency, Mr. Laursen
is not found to be employable at the time of his injury and therefore this
benefit may not be considered.

[22]

Once again advocates for Mr. Laursen responded on his behalf. Kailey
Toth is a social worker at GF Strong Rehab Centre. On 16 April 2012 she wrote
to the Director, in part saying this:

The denial of Mr. Laursens
initial application, dated February 9, 2012, stated that it could not be
foreseen whether Mr. Laursen would be clean and sober on April 1, 2012 (I
believe this letter meant to state April 1, 2011). I am writing to support Mr. Laursens
appeal and to add that Mr. Laursen has been clean and sober for over a
year. Mr. Laursen could have been employed during this time were it not
for the injuries he sustained on February 17, 2011. Despite the
unpredictability of sobriety, that Mr. Laursen has been doing so
remarkably well despite what he has been through, speaks to his tremendous
resiliency and the possibility for him to have become sober, no matter the
circumstances. While Mr. Laursen was not deemed to be employable at the
time of his injury, he certainly had the potential for future employment and
lost that potential not because of a lack of sobriety on his part, but because
of the crime that was committed against him. I would ask that the Crime
Victims Assistance Program reconsider your decision and take into account that
while it is impossible to guarantee that Mr. Laursen would be clean and
sober on April 1, 2011 we also cannot rule out that he could have been.

[23]

This submission led to the reconsideration decision of 18 May 2012, the
only decision that is still relevant on judicial review. It confirmed the
decision of 9 February 2012. Although Ms. Toths letter was not before the
adjudicator in the 9 February 2012 reassessment decision, the reconsideration adjudicator
nevertheless considered her letter in his decision. Under s. 14(2) of the
Act
this should have been done by way of a reassessment; however, the Director did
not rely on this procedural issue in his submissions.

[24]

The reconsideration adjudicator, in comprehensive reasons, dealt first
with the application for income support benefits. The adjudicator agreed with
the decision of 9 February 2012: the offer of employment was contingent on a
precondition  that Mr. Laursen be sober and drug free in April 2011. The
adjudicator could not find that to be satisfied on the balance of
probabilities:

As a result, I also cannot find
that Mr. Laursen held a job or occupation when he was injured in February
2011, which disqualifies him for further income support benefit consideration.

[25]

No issue is taken with this finding or conclusion.

[26]

However, on the issue of lost earning capacity benefits, the adjudicator
said this:

I am instructed by section 6 of the
Regulation
that
the first consideration under this heading is Mr. Laursens employability
at the time of the assault. Specifically, I must be able to make an initial
finding on the evidence before me that Mr. Laursen was employable but not
employed at the time of that injury. In my judgment, the evidence does not
support that finding.

As noted by the Program adjudicator in the February 9, 2012
reassessment decision, Mr. Laursen first qualified through the provincial
Ministry of Social Development for disability benefits for drug and alcohol
abuse in 2002. The adjudicator also noted that according to his tax records, Mr. Laursens
sole source of income since 2008 was his disability benefits that, again, were
due to his addiction. In addition, it has already been established that Mr. Laursen
was experiencing a drug relapse in February 2011 when he was assaulted.

I appreciate Ms. Toths submissions regarding Mr. Laursens
potential for
future
employability had it not been for the compensable
injuries he sustained, but the weight of the evidence before me leads me to the
same conclusion as the adjudicator, that Mr. Laursen was not employable
in February 2011
. I therefore find that the Programs denial of lost
earning capacity benefits was consistent with the best available evidence as
well as the law and the
Regulation
.

[Italics in original, underline added.]

[27]

It will be seen that the adjudicator misstates Ms. Toths evidence.
She stated, in part, of Mr. Laursens situation in February 2011  he
certainly had the potential for future
employment
and lost that
potential not because of a lack of sobriety on his part, but because of the
crime that was committed against him (emphasis added). The Directors reference
to employability instead of employment is significant.

[28]

The adjudicators reasons also make it clear that he did not take into
account Mr. Laursens likely future position had he not been assaulted. The
Directors finding that Mr. Laursen was not employable in February 2011,
taken alone, is capable of meaning that he implicitly took into account Mr. Laursens
future employment capacity. However, the preceding discussion of Ms. Toths
submissions makes it clear that he did not. He discounted her letter precisely
because it concerned Mr. Laursens

future potential. His
discounting of Mr. Laursens future potential is made further clear by the reconsideration
adjudicators agreement, in all essential respects, with the reassessment of 9
February 2012. The adjudicator there similarly halted his inquiry on the issue
of employability at February 2011. That adjudicator said (to repeat the
extract above in part):

As the medical information indicates that Mr. Laursen
was using drugs at the time of the offence the program cannot consider him
employable.

Based on the information
available from the Ministry of Social Development and Canada Revenue Agency, Mr. Laursen
is not found to be employable at the time of his injury and therefore this
benefit may not be considered.

[29]

I will discuss the impact of these points with respect to the Directors
implicit definition of employable below.

Chambers Judgment

[30]

The chambers judge summarized the crux of the issue on judicial review as
whether the Directors determination that Mr. Laursen was not employable
at the time of the assault was reasonable. He noted the parties agreement that
the issue of whether judicial review of the reconsideration decision was
statute-barred would be dealt with later if Mr. Laursen was successful in
his application on the merits.

[31]

The chambers judge found the Directors interpretation of employable
reasonable, which meant that he was required to defer to it (
McLean v.
British Columbia (Securities Commission)
, 2013 SCC 67 at paras. 40-41).

[32]

The chambers judge then looked at the evidence presented by Mr. Laursen
and again found the Directors decision not to award an amount for lost earning
capacity reasonable. None of the information or evidence before the Director
established that Mr. Laursen was physically and mentally capable of being
employed or self-employed on the day he was injured. He concluded that the opinion
of Ms. Toth one year later regarding Mr. Laursens progress in rehab
and his future employment potential were unsubstantiated and that the Director
was correct to place little reliance on that opinion.

[33]

Mr. Laursen appeals the chambers judges decision.
He seeks to have this Court set aside the 18 May 2012 reconsideration decision
and remit the issue of his application for lost earning capacity benefits to
the Director in accordance with the proper interpretation of s. 6 of the
Regulation
.
He says the Directors interpretation of employable was unreasonable and/or
that he unreasonably found that Mr. Laursen was not employable on the
facts. He also seeks to have this Court determine whether his application for
judicial review is statute-barred notwithstanding the agreement of the parties
to consider this issue at a future hearing if Mr. Laursen was successful
on the merits.

Submissions

[34]

Both parties agree that the chambers judge
properly identified the standard of review as reasonableness. They also agree
that, at issue, is an implicit decision of the Director to interpret capable
of in the definition of employable as meaning able to.

[35]

In a nutshell, Mr. Laursens position is
that the chambers judge erred in finding that the Directors interpretation of
employable was reasonable. He argues that the judge deferred to the
Directors overly restrictive interpretation of capable of being employed as
meaning able to be employed. The Director failed to consider the plain meaning
of capable of in light of the text, context and purpose of the
Act
and
associated regulations. Had he done so, he would have found that capable of
should be interpreted as having the future potential to. A person will be
eligible for lost earning capacity benefits if he or she generally had the
physical and mental potential for, or openness to, being employed.

[36]

The Director responds that the chambers judge
correctly found that it was reasonable for the Director to have implicitly
interpreted the term capable of in the definition of employable as meaning
able to rather than having the future potential to. The chambers judge was
required to defer to any reasonable interpretation and he was able to consider
reasons which could have been offered in support of the Directors decision. The
Director argues that Mr. Laursen adopts a less obvious dictionary definition
of capable and that competent, ableor having the ability or fitness
necessary for is the ordinary meaning of the term. This interpretation is
consistent with the context of the legislation and, in particular, with all
references to employable in the
Regulation
. It is also consistent with
the purpose of the
Act
which is to provide publically funded benefits while
balancing accountability with public funds and providing benefits to victims.

[37]

In oral argument, the parties seemed to agree
that their respective interpretations both work within the context of the
legislation and that this tool of statutory interpretation is not
determinative.

[38]

Turning to the second ground of appeal and
whether the evidence demonstrated that Mr. Laursen was capable of employment,
in his factum Mr. Laursen conceded that his success on this ground rests on
this Court siding with his interpretation of employable. However, in oral
argument, he argued that this Court could side with the Directors
interpretation of employable and nevertheless find that it was unreasonable
to conclude that Mr. Laursen was not capable of employment. He submits
that this question should be remitted to the Director for reconsideration.

[39]

The Director argues that Mr. Laursens
second ground of appeal is predicated on this Court accepting his argument on
the interpretation issue. The chambers judge made no findings with respect to
the evidence on the basis of Mr. Laursens preferred interpretation such
that it is unclear how he erred.

[40]

In the alternative, the Director submits that if
this Court determines the chambers judge erred on the first issue then the
proper remedy is to remit the matter to the Director to permit him to identify
a different interpretation of employable. There may be more than one
reasonable interpretation of employable that has yet to be identified.

[41]

Finally, Mr. Laursen seeks leave to argue a
new issue on appeal  namely, whether the application for judicial review is
time-barred. He does not dispute that the application for judicial review was
brought well outside the 60-day period set out in s. 14.1(2) of the
Act
.
However, he says his application is saved by s. 11 of the
JRPA
. The
text, context and purpose of s. 11 require a conjunctive reading of
subsections (a) and (b) such that this Court ought to exercise its discretion
to permit the late-filed application. He argues that to hold otherwise would
oust this Courts supervisory jurisdiction and violate the constitutional right
to judicial review.

[42]

The Director submits that s. 11 of the
JRPA
was impliedly repealed either by s. 14.1(2) of the
Act
or s. 57
of the
Administrative Tribunals Act
, S.B.C. 2004, c. 45 (
ATA
).
With respect to the former argument, the Director says that to hold otherwise
would be to find that the 60-day limitation period in the
Act
is
meaningless. Regarding the latter argument, the Director cites
Speckling v.
British Columbia
, 2008 BCCA 155, for the proposition that the limitation
period in s. 57 put a statutory temporal restraint on the right to seek
judicial review additional to that found in s. 11 of the
JRPA
.

[43]

Mr. Laursen says that s. 14.1(2) does
not entirely cover the subject matter of s. 11 so as to conclude that it
repealed s. 11. It is not open to the Director to rely on the difficulty
of proving prejudice or substantial hardship as a means for arguing that
s. 11 has been impliedly repealed. Further, section 57 of the
ATA
does not apply to the Director and, in any event, any discussion of s. 57 impliedly
repealing s. 11 ought to be saved for another day before a full
evidentiary record.

[44]

Mr. Laursen seeks costs of this appeal because the Director argued
the merits of the issues in both the court below and before this Court.

Analysis

[45]

I turn to my analysis.

[46]

There is no dispute that the standard of review applicable to the
Directors reconsideration decision is reasonableness. The substantive issue
here  the meaning of employable  turns on the interpretation of the
Act
and
Regulation
, the Directors home statute. Interpretation of an administrative
decision makers home statute raises the presumption of reasonableness, and
none of the four categories of issues that call for correctness are present
here (
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.
,
2016 SCC 47 at paras. 2324).

[47]

Applying the reasonableness standard, if I find that there are multiple
reasonable interpretations of employable and one of them is consistent with
the Directors interpretation then I must defer to the Director. He holds the
interpretive upper hand (
McLean
at para. 40). However, if by
applying the ordinary tools of statutory interpretation I conclude that there
is a single reasonable interpretation that differs from that of the Director
then his interpretation is necessarily unreasonable (
McLean
at para. 38).
For the reasons set out below, I find that there is such a single reasonable
interpretation and the Director failed to adopt that interpretation. The
Directors decision must therefore be set aside.

[48]

The case of course turns on the statutory definitions of employability
and employable. They are set out in s. 1 of the
Regulation
:

"employability"
means the physical and
mental capability of being employed or self-employed;

"employable"
means physically and mentally capable of being employed or self-employed;

[49]

Both definitions centre on the notions of capability and capable.

[50]

The parties effectively take opposing either/or positions. Mr. Laursen
suggests that capable of being employed refers to the potential for or
openness to being employed. On the contrary, the Director suggests that it
means able to be employed, in this case, before and in and around February
2011.

[51]

As I alluded to above, in the reconsideration decision at issue the
Director completely discounted submissions made on behalf of Mr. Laursen
concerning his potential for future employment. I reproduce the relevant
portion of those reasons again for convenience:

I appreciate Ms. Toths
submissions regarding Mr. Laursens potential for
future
employability had it not been for the compensable injuries he sustained, but
the weight of the evidence before me leads me to the same conclusion as the
adjudicator, that Mr. Laursen was not employable in February 2011.
[Emphasis in original.]

[52]

From his reasons, it is clear the reconsideration adjudicator took into
account Mr. Laursens employment history and past income. However, his
discounting of Ms. Toths letter because it concerned Mr. Laursens
potential for
future
employability and his complete disregard of Mr. Cavanaghs
letter make it clear that he stopped his analysis in February 2011. As I have
said, he also repeated the same error made by the adjudicator whose 9 February
2012 reassessment decision he was reconsidering.

[53]

In my view, the Director was correct in suggesting that the capacity of
an applicant for employment must be tested at the time of the event giving rise
to the claim for lost earning capacity benefits. But Mr. Laursen was
correct in suggesting that the applicants potential for employment must be
relevant as well. Mr. Laursen was wrong to discount the issue of present
ability and the Director was wrong to discount the applicants future potential
to engage in employment.

[54]

Of essential importance, the Directors discounting of future potential
for employment is a clear legal error resulting in an unreasonable decision
denying Mr. Laursen potential benefits for lost earning capacity.

[55]

The parties rely on dictionary definitions of capable.

[56]

Definitions 2 and 3 of capable in the
Shorter Oxford English
Dictionary
, 6
th
ed. (Oxford: Oxford University Press, 2007)
define it so:

2.         foll. by of: open to, admitting of, susceptible.

3.         Having the ability,
power or fitness for some specified purpose or activity;

[57]

In the
Canadian Oxford Dictionary
(Toronto: Oxford University
Press, 1998), we find:

1.         Competent, able, gifted

2.         (foll. by of) a.
having the ability or fitness or necessary quality for;
b. susceptible or admitting of (explanation or improvement etc.)

[58]

The
Concise Oxford English Dictionary
, 11
th
ed. (Oxford:
Oxford University Press, 2008) reads:

1.         (capable of doing
something) having the ability or quality necessary to do something > open to
or admitting of something

[59]

The parties would pick and choose between the alternatives here. The
one concentrating on present ability, the other on future potential, openness
to, or susceptible. But in truth capable as used in the
Regulation
means all of these things; it covers each of these notions. One must approach
the question of lost earning capacity holistically without artificially
constraining the inquiry, as the Director has, to a period of time before and in
and around February 2011.

[60]

This is demanded by the context of the
Act
. In distinguishing
between income support benefits (in the case of a loss of actual employment)
and lost earning capacity benefits, the
Act
mirrors the equivalent
common law heads of damage in tort law. The legislative drafters did not use
the words lost earning capacity by accident. In my view, they must be taken
to have intended to incorporate the legal meaning of this concept when defining
eligibility for lost earning capacity benefits.

[61]

I reproduce this summary of the lost earning capacity head of loss by
Professor Fridman in
The Law of Torts in Canada
, 3rd ed. (Toronto:
Carswell, 2010) at 487488:

Loss of the opportunity to earn,
including future earnings, may be recovered. The rationale for this recovery is
that, as a result of the defendants negligence, the plaintiff is now less
valuable to himself or herself as a person capable of earning an income in a
competitive market or has suffered loss or impairment of earning capacity
viewed as a capital asset. In assessing what the plaintiff has lost the court
must focus on the plaintiffs lost opportunity to earn income as a consequence
of the accident. The amount of any award will depend on what the plaintiff was
earning at the time of the accident, and on whether he or she can still earn
any income after the accident. However,
if the plaintiff was not gainfully
employed when injured but intended at some future point to be, and was capable
of being, gainfully employed
, the court must make a reasonable allowance
for the probable loss of future income due to the plaintiffs being deprived of
that opportunity. [Emphasis added.]

[62]

The underlined portion reflects the need for courts to measure lost
earning capacity with an appreciation for both the present condition of the
plaintiff and his or her likely future capability.

[63]

Measuring lost earning capacity with an eye to both the present and
likely future position of an individual is reflected in this Courts approach
to lost earning capacity awards in personal injury cases. It is well-settled
that plaintiffs must establish a real and substantial possibility that their
earning capacity has been impaired to recover damages for lost earning capacity
(
Perren v. Lalari
, 2010 BCCA 140 at para. 32). If the plaintiff
discharges that burden of proof then he or she may prove the quantification of
that loss on either an earnings or capital asset approach (
Morgan v.
Galbraith
, 2013 BCCA 305 at para. 53). The latter approach is more
useful where a loss is not as easily measurable.
Brown v. Golaiy
(1985),
26 B.C.L.R. (3d) 353 (S.C.) sets out the following considerations in applying
the capital asset approach:

1. The plaintiff has been rendered less capable overall from
earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an
employee to potential employers;

3. The plaintiff has lost the ability to take advantage of
all job opportunities which might otherwise have been open to him, had he not
been injured; and

4. The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

[64]

A review of these factors demonstrates that not working on the day of
ones injury or suffering from a transitory physical inability to work are not
absolute bars to recovery. They are relevant factors, but courts may nevertheless
award an amount if, notwithstanding a present incapacity, the plaintiff
demonstrates that his or her earning potential has been impaired in accordance
with the real and substantial possibility threshold.

[65]

The approach to lost earning capacity awards in personal injury cases
provides the context within which s. 6 of the
Regulation
must be interpreted.
After all, the Legislature is presumed to know the law; absent a clear
legislative intent to the contrary, a statute should not be interpreted as
substantially changing the common law (
R. v. D.L.W.
, 2016 SCC 22 at para. 21).
Of course, here the legislation in s. 6(2) and s. 1(1) of the
Regulation
mandates a specific formula for calculating the amount of the lost earning
capacity benefit and to this extent the legislation departs from the common
law I have discussed.

[66]

The meaning of lost earning capacity according to dictionary definitions
and at common law reflects two key components of capability, as that term is
used in the definition of employable in the
Regulation
: intent and
ability. To this I add the requirement that capability be measured at the time
of the injury (
Regulation, s.
6(1)(a)).

[67]

Reasoning from the foregoing meaning of employableat the time of the
injury, in my view, the analysis demanded by s. 6 of the
Regulation
is as follows: the Director is required to test the applicants potential for
future employment at the time of the injury
not
based simply on the
applicants physical status at that time, but based on the applicants intent
and ability to do what is necessary to become employed in the future
(s. 6(1)). After reviewing the materials filed in support of the
application, if the Director is satisfied that the applicant has both the
intent and the ability to become employed in the future then he awards an
amount calculated under the formula in s. 6(2) and the s. 1(1) definition of
lost earning capacity benefit when the applicant is first impacted by that
loss (s. 6(3)). It is up to applicants to satisfy the Director of their intent
and ability as well as the time at which they will be impacted by the loss.

[68]

I would expand on this discussion of the operation of the statutory
scheme by quoting s. 6 of the
Regulation
in full:

Lost earning capacity

6
(1) The director may award to a victim a benefit in
the category of benefits described as lost earning capacity in section 4 (1)
(m) of the Act only if the director is satisfied that an eligible injury has
resulted in a loss of employability and the victim

(a) was a minor or an adult victim
who was employable but not employed at the time of that injury, and

(b) is, as a result of that injury,

(i) unemployable, or

(ii) not employable for 40 hours a
week.

(2) The director may award a lost earning capacity benefit to
a victim affected by a loss of employability in an amount that equals the
difference between 40 hours a week and the average number of hours the
victim is employable after the eligible injury, up to a maximum of
40 hours a week, less the victim's income from other sources.

(3) Subject to subsections (4) and (5), a victim is eligible
for a benefit under subsection (2) from the date the victim first became
affected by the loss of employability, as determined by the director.

(4) The director must not award a lost earning capacity
benefit to a victim who is a minor at the time of the eligible injury, unless
the minor victim was living independently at the time of that injury.

(5) A victim who is a minor who is not living independently
at the time of the eligible injury is eligible for a lost earning capacity
benefit on becoming 19 years old, payable from that date if the victim is
still affected by a lost earning capacity.

(6) The director may require a
victim who is employable, as a condition of the victim receiving a lost
capacity benefit, to participate in vocational services that are specified by
the director.

Under this provision, the following factors must be
present before the Director will award any amount of lost earning capacity
benefits: (1) the claimant has suffered an eligible injury, (2) the eligible
injury has resulted in a loss of employability, (3) the claimant was employable
(as I have defined that term above) but not employed at the time of the injury,
and (4) the claimant is affected by the loss of employability. The first three
criteria come from s. 6(1) and crystallize at the time of the injury. The
fourth factor comes from s. 6(3) and, as I will explain more fully below, may
change over time depending on the claimants conduct rendering him or her unfit
for employment.

[69]

I note first s. 6(3), which accords the Director a broad discretion
to determine the start date for the payment of lost earning capacity benefits,
if awarded. In the case of this claimant, it would be that date in the future
when the Director determined on the basis of the evidence before him that Mr. Laursen
would have been fit for employment but for his compensable injury. Determining
when Mr. Laursen is actually affected by the loss of employability
requires a judgment call by the Director, but that is what s. 6(3)
contemplates. Indeed, it is little different from the discretionary
determination made by trial judges in quantifying damages for loss of earning
capacity in personal injury cases.

[70]

How would the scheme work in this case? It seems to me that the Director
would first determine whether the three s. 6(1) criteria are met. Under
s. 6(3), he would then determine a future date when Mr. Laursen would
likely have been fit for employment. If the evidence permits him to identify
such a date then benefits would be paid in accordance with s. 6(2). If the
Director awarded him lost earning capacity benefits and Mr. Laursen later
relapsed such that he was no longer 
affected
by the loss of
employability precipitated by the compensable injury, s. 12(1) of the
Act
would require him to so notify the Director such that a reassessment of his
eligibility for the benefit might be undertaken. Indeed, under s. 12(3) of
the
Act
, the Director may on his own initiative reassess a persons
eligibility for a benefit under the
Act
.

[71]

Before I leave s. 6(3) of the
Regulation
, I would address a
point stressed by the Director: if employability and employable look, as
well, to future potential, this subsection, says the Director, becomes
nonsensical because a claimant would be employable at all times; there would
be no interval in any case as s. 6(3) contemplates in some situations. The
answer is this: in Mr. Laursens case, for example, he would only begin to
receive the benefit as of the future date determined by the Director when he
would likely have been fit for actual employment. The evidence presently before
the Director may or may not satisfy him that Mr. Laursen would have been
employable by a particular future date. That is his decision to make. While it
is possible that Mr. Laursen remains employable at all times (even during
his alcohol and drug-induced incapacity) he only becomes affected by the loss
of the potential for actual employment so as to become entitled to a
compensable benefit, when he has made himself otherwise fit for employment (for
example, by remaining clean and sober as he has now done for over a year).

[72]

This interpretation of employable is consistent with the context of
the
Regulation
and gives effect to the purpose of the legislation as a
whole.

[73]

Regarding the legislative context, as I indicated above, this
interpretation gives effect to the distinction between lost earning capacity
and income support benefits, which use employable and employed,
respectively. It is consistent with the reference to employability in the
eligibility criteria for vocational services, which would serve to advance the
applicants ability to become employed in the future (s. 2,
Regulation
).
It also does not offend the plain meaning of employable as it is used in
determining compensation for short and long term losses of employability since
those awards are dependent on the victim holding a job at the time of the
injury (ss. 3, 4,
Regulation
).

[74]

Moreover, this interpretation avoids the absurdity of the Directors
interpretation that individuals suffering from transitory conditions preventing
them from working at the moment they are injured (e.g., pregnancy, bereavement
leave, intoxication) would be forever ineligible for lost earning capacity
benefits. In my view, it cannot have been the intent of the Legislature to
preclude these individuals from recovering vocational and lost earning capacity
benefits.

[75]

As it relates to the purpose of the legislation, when the
Act
was
introduced in the Legislative Assembly the Honourable Rich Coleman set out the
purpose behind the legislation as follows:

Changes to make this program more responsive have long been
advocated by victims[] groups and stakeholders. This new legislation will
allow the ministry to provide a program that effectively responds to victims of
crime while being fiscally accountable to government. Even after these changes,
the B.C. program will still be among the most generous in Canada.

(British Columbia,
Official
Report of Debates of the Legislative Assembly (Hansard)
, 37
th
Parl., 1st Sess., Vol. 2, No. 23 (21 August 2001) at 691.)

[76]

Requiring that the Director have regard to the applicants potential for
future employment gives effect to the legislative intent to put victims of
crime back in their original position. Requiring applicants to prove that they
had the requisite intent and ability
at the time of the injury
(s.
6(1)(a)) and only paying benefits when the victim is actually affected by the
loss of employability (s. 6(3)) ensures that the Crime Victim Assistance
Program remains accountable to the public purse.

[77]

I now turn to applying this interpretation to the facts at hand. Here, the
Director considered Mr. Laursens income tax returns from 2002 to 2010.
The returns indicate that Mr. Laursen earned some income in 2001
($10,459), 2005 ($1,112), 2006 ($16,804), 2007 ($19,647) and 2008 ($9,860).
While these are not substantial sums, they are reflective of some

capacity
to earn income. Moving to the time of the injury, Mr. Laursen was not
gainfully employed when injured but intended at some future point to be,
indeed in his case, in April 2011.

[78]

The question is: did he have the intent and ability or was he capable
of being gainfully employed (Fridman)? In the eyes of one employer  the
recovery facility in the person of Mr. Cavanagh  he certainly was. Ms.
Toth provided some evidence that Mr. Laursen would have been gainfully
employed if not for the compensable injury when she stated (and I repeat her
words):

Despite the unpredictability of
sobriety, that Mr. Laursen has been doing so remarkably well despite what
he has been through, speaks to his tremendous resiliency and the possibility
for him to have become sober, no matter the circumstances. While
Mr. Laursen was not deemed to be employable at the time of his injury, he
certainly had the potential for future employment and lost that potential not
because of a lack of sobriety on his part, but because of the crime that was
committed against him. I would ask that the Crime Victims Assistance Program
reconsider your decision and take into account that while it is impossible to
guarantee that Mr. Laursen would be clean and sober on April 1, 2011 we
also cannot rule out that he could have been.

[79]

As I noted earlier, the adjudicator misstated Ms. Toths evidence:
he said in the impugned decision that he appreciated her submissions regarding
Mr. Laursens potential for 
future
employability Ms. Toth
was not speaking of future employability, she was speaking of future
employment
and it was that potential that was lost. By equating employment with
employability the adjudicator conflated income support benefits with lost
earning capacity benefits.

[80]

The Director properly discounted Mr. Cavanaghs view in his
consideration of income support benefits. But when he again discounted Mr. Cavanaghs
and Ms. Toths letters in assessing Mr. Laursens eligibility for
lost earning capacity benefits, he adopted an improperly constrained
interpretation of capable of being employed. He disregarded Mr. Laursens
ability to attract a firm offer of employment as of February 2011. The Director
(through the adjudicators) did not engage in a testing of Mr. Laursens
potential for future employment as he must do when determining eligibility for
lost earning capacity benefits.

[81]

Indeed, the Director himself expressly recognized the need for this in
the case of others who might be unable to work at the critical time but who
might otherwise find work in the future. At para. 66 of his factum the
Director states:

The clear purpose of lost earning
capacity benefits is to provide a benefit similar to income support for persons
who were able to be employed at the time of the crime but were not. This could
include students who were physically and mentally able to be employed, but were
not because they were attending school. Likewise it could include full-time
caregivers who could have been employed at the time of the injury had they not
chosen to stay at home to take care of a child or a sick parent or spouse. It
also could include persons who recently lost their job and had yet to secure another
one. In light of s. 6(3) of the
Regulation
, these persons would not
begin to receive benefits until such time as they were actually affected by
their loss of employability, as determined by the Director (i.e. when the
Director believes they would have been employed). This properly balances
expenditures of tax-payer funds with providing benefits to victims so that they
are in a similar position to their position at the time of the crime.

[82]

The Director is here recognizing that notwithstanding the transitory
inability to actually work at the time of the injury, the opportunity to work
in the future has been lost and that loss should be compensated. He also
recognizes that persons should begin to receive benefits when the Director
believes they would have been employed. This is consistent with how I have
outlined the operation of the statutory scheme in these reasons. It is
impossible to reconcile permitting recovery for the individuals referenced by
the Director in his factum, yet deny recovery to an individual solely because
he was suffering a drug relapse at the time of the injury. The legislation
makes no such distinction between the types of incapacity that would preclude
recovery. In fact, in some cases, it would be discriminatory to do so.

[83]

The Director as evidenced by his treatment of students, caregivers and
the temporarily unemployed in his written submissions on appeal recognizes the
proper interpretation of capable of being employed; his failure to apply it in
Mr. Laursens case and to engage in a consideration of the possibility of Mr. Laursens
lost opportunity of future employment makes the decision at bar unreasonable.

[84]

I turn now to the argument that s. 11 of the
JRPA
 which
the parties appear to agree would otherwise permit the application to proceed 
has been impliedly repealed by later legislative enactments.

[85]

In my view, Mr. Laursen has met the
standard required for this Court to consider a new issue raised for the first
time on appeal. The issue is a question of pure law that can be resolved with
reference to the parties positions, as outlined in the amended petition and
response to petition as well as their submissions before this division. Further,
the Director has not identified any prejudice he would suffer if this Court were
to determine whether the application is statue-barred. (See
On Call Internet
Services Ltd. v. Telus Communications Company
, 2013 BCCA 366 at paras. 6566.)

[86]

Turning to the merits, s. 11 of the
JRPA
reads as follows:

An
application for judicial review is not barred by passage of time unless

(a) an enactment otherwise provides, and

(b) the court
considers that substantial prejudice or hardship will result to any other
person affected by reason of delay.

[87]

The provisions application in the present case can
be broken down into two sub-issues:

1. Does the
JRPA
govern the issue of whether a late-filed application under the
Act
is
statute-barred?

2. If it does, do subsections 11(a) and (b) apply?


[88]

On the first sub-issue, it is most efficient to first
consider the Directors argument that s. 11 of the
JRPA
was impliedly
repealed by s. 57 of the
ATA
. Section 1.1 of the
ATA
provides that the provisions of the Act do not operate, except as made
applicable to a tribunal or other body by another enactment. In
Speckling
,
the Court considered the
Workers Compensation Act
, R.S.B.C. 1996,
c. 492, which expressly makes s. 57 applicable to the tribunal.
Nowhere in the
Act
or associated regulations is there reference to the
ATA
being applicable to the Director. Nor am I convinced that by enacting the
ATA
,
the Legislature communicated a broader intention to repeal all limitation
periods set out in individual statutes regardless of whether the
ATA
expressly applies to them.

[89]

I am also unconvinced by the Directors argument
that s. 14.1(2) of the
Act
impliedly repealed s. 11 of the
JRPA
.
The test for implied repeal in
Conseil scolaire francophone de la
Colombie-Britannique v. British Columbia,
2013 SCC 42

provides that
the new statute must have covered the entire subject-matter of the previous
statute such that according to all other ordinary reasoning the particular
provisions in the prior statute could not have been intended to subsist (at para. 44,
citing
R. v. Mercure
, [1988] 1 S.C.R. 234).

[90]

Subsection 11(a) of the
JRPA
explicitly
contemplates the existence of other enactments setting out a timeframe for
judicial review. This is what s. 14.1(2) of the
Act
does when it
requires judicial review applications to be filed within 60 days. Subsection
11(b) requires the reviewing court to then consider whether substantial
prejudice or hardship will result to any other person affected by reason of
delay. The provisions of the
Act
and
JRPA
are not incompatible
with one another; rather, the
JRPA
calls on the Director to point to
some substantial prejudice or hardship resulting from the delayed application
for judicial review. The difficulty of pointing to such prejudice does not mean
that the Legislature can necessarily be taken to have intended to repeal
s. 11 as applied to the Crime Victim Assistance Program.

[91]

With respect to the second sub-issue, the
Director does not advance any evidence of prejudice and, in fact, concedes that
he is unlikely to be able to show prejudice at any point in considering an
application for judicial review.

[92]

Accordingly, I would conclude that the application for judicial review
is not statute-barred.

[93]

For these reasons I would allow the appeal and remit the issue of Mr. Laursens
entitlement to lost earning capacity benefits back to the Director for
redetermination in accordance with these reasons.

[94]

Mr. Laursen also seeks costs of this appeal on the basis that the
Director argued the merits of the claim on his judicial review application.

[95]

Subject only to certain exceptions, there is a traditional immunity
protecting quasi-judicial tribunals from costs awards (
Lang v. British
Columbia (Superintendent of Motor Vehicles)
, 2005 BCCA 244 at paras. 45-46).
Two exceptions to this immunity are where the tribunal exhibited misconduct in
the proceedings before it, or made improper submissions on the merits of the
judicial review application and did not limit itself to jurisdiction (
18320
Holdings Inc. v. Thibeau
, 2014 BCCA 494 at paras. 55-69;
Lang
at
para. 2). Mr. Laursen relies on the latter exception.

[96]

Key to the application of this exception is whether the tribunal
improperly
argued the merits.

[97]

The Director does not dispute that he argued the merits. The question is
whether he properly did so. In my view, he did. In
Thibeau
I noted that
the exceptions in
Lang
do not authorise an award of costs against a
tribunal which of necessity argues the merits where there is no one else to
argue the other side (at para. 58). Here, no one other than the Director
would have argued the merits such that he is entitled to the traditional
immunity protecting him from costs awards.

[98]

Accordingly, I would not award costs to Mr. Laursen.

The
Honourable Chief Justice Bauman

I agree:

The Honourable Madam
Justice Bennett

I agree:

The Honourable Madam Justice Dickson


