



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Kerton v. Workers Compensation Appeal Tribunal,









2011 BCCA 7




Date: 20110110

Dockets:
CA038134, CA038146

Docket: CA038134

Between:

Fred Kerton

Respondent
(Appellant on Cross-Appeal)

(Petitioner)

And

Workers
Compensation Board of British Columbia

Appellant
(Respondent on Cross-Appeal)
(Respondent)

And

Workers
Compensation Appeal Tribunal

Respondent (Respondent
on Cross-Appeal)

(Respondent)

-and-

Docket: CA038146

Between:

Fred Kerton

Respondent
(Appellant on Cross-Appeal

(Petitioner)

And

Workers
Compensation Appeal Tribunal

Appellant
(Respondent on Cross-Appeal)

(Respondent)

And

Workers
Compensation Board of British Columbia

Respondent (Respondent
on Cross-Appeal)

(Respondent)

Corrected Judgment:  The text of the judgment was corrected
at paragraphs

4, 5, 32 and 33 where changes
were made on January 12, 2011




Before:



The Honourable
  Chief Justice Finch





The Honourable Madam Justice Kirkpatrick





The Honourable Mr. Justice Groberman




On appeal from: Supreme
Court of British Columbia, 5 May 2010,
(
Kerton v. Workers Compensation Appeal Tribunal
, Docket S081267)




Counsel for the Appellant, Workers

Compensation Appeal Tribunal:



T.J. Martiniuk, C.
  Berkey





Counsel for the Appellant, Workers

Compensation Board



L. Courtenay, S.A.
  Nielsen





Counsel for the Respondent, Kerton,

Appellant on the Cross-Appeal:



V.A. Ishkanian





Place and Date of Hearing:



Vancouver, British
  Columbia

December 2, 2010





Place and Date of Judgment:



Vancouver, British
  Columbia

January 10, 2011









Written Reasons by:





The Honourable Chief Justice Finch and The Honourable Mr.
  Justice Groberman





Concurred in by:





The Honourable Madam Justice Kirkpatrick




















Reasons for Judgment of the Honourable
Chief Justice Finch and the Honourable Mr. Justice Groberman:

I.  Introduction

[1]

The Workers Compensation Appeal Tribunal (WCAT) and the Workers
Compensation Board (WCB) appeal from the order of the Supreme Court of
British Columbia pronounced 5 May 2010.  That order granted judicial review of
two decisions of WCAT, quashed both decisions, and remitted the matter to WCAT
for reconsideration.  Both of the impugned WCAT decisions depended upon that
tribunals interpretation and application of s. 243(3) of the
Workers Compensation
Act
, R.S.B.C. 1996, c. 492, governing its discretion to extend time for
filing a notice of appeal.

[2]

The first decision, 20 October 2006, denied the petitioners request for
an extension of time (the EOT Decision).  The second decision, 8 January
2008, denied the petitioners request for reconsideration of the earlier
decision (EOT Reconsideration Decision).  The effect of the two decisions was
to bar the petitioners intended appeal from the decision of the Workers
Compensation Review Division on 19 December 2005.

[3]

The learned chambers judge held that the two WCAT decisions addressed a
jurisdictional issue, and were therefore reviewable on the standard of
correctness.  He held that the decisions refusing an extension of time, and
refusing reconsideration, were incorrect and should therefore be set aside.

[4]

For the reasons that follow, we are of the opinion that the learned
chambers judge erred in characterizing the issue as one of jurisdiction, and
erred in applying the standard of correctness.  The applicable standard of
review, as prescribed by the
Administrative Tribunals Act
, S.B.C. 2004,
c. 45, is patent unreasonableness.  In our opinion, neither of the impugned
decisions can be said to be patently unreasonable.  We would allow the appeal.

[5]

The petitioner, Mr. Kerton, cross-appeals from the order of the Supreme
Court of British Columbia, arguing that the court should have made an order in
the nature of
mandamus
compelling WCAT to grant the extension of time.  We
would dismiss the cross-appeal.

II.  Facts

[6]

The learned chambers judge summarized the background of Mr. Kertons
case as follows:

[2]   Mr. Kerton injured his left leg and knee on the job in
1991 and the Board compensated him for his injuries at that time. In 2005, as a
result of on-going knee difficulties, the Board re-opened his claim under s.
96(2) of the
Workers Compensation Act
, R.S.B.C. 1996, c. 492

[
WCA
].
The date of re-opening was set by the Board as April 1, 2005, the date of his
knee surgery. The Board paid his temporary benefits under s. 29 (wage loss and
benefits).

[3]   Where a claim is re-opened after three years, s. 32(1)
of the
WCA
gives the Board discretion to determine compensation benefits
by reference either to the workers average earnings before the original injury
or before its recurrence.

[4]   Mr. Kerton attempted to
make four appeals in this case, but one was not filed in time. It is this
fourth late appeal that is in issue in this case. For completeness, I will
briefly outline the four appeals below:

[7]

It is not necessary for these reasons to review the first three
appeals.  With respect to the fourth appeal, the only one at issue here, the
learned chambers judge said:

[8]   On June 10, 2005, the Board
determined Mr. Kertons average net earnings for long-term and short-term wage
rates. Mr. Kerton requested a review of that decision by the Review Division,
which issued its decision on December 19, 2005, confirming the Boards decision.
Mr. Kerton filed an appeal of that Fourth Review Division decision to WCAT.
Section 243(1) of the
Act
provides that an appeal from a decision of the
Review Division must be filed within 30 days after the decision being appealed
was made. WCAT allows for an 8-day mailing period to ensure receipt of the
Review Division decision. Mr. Kertons filing was approximately 186 days late.

[8]

As indicated above, the WCAT EOT Decision of 20 October 2006 refused the
petitioner an extension of time .  The WCAT EOT Reconsideration Decision of 8
January 2008 refused the petitioners request for a reconsideration of the earlier
refusal.

[9]

WCATs authority to extend time for the filing of a notice of appeal is
set out in s. 243(3) of the
Workers Compensation Act
.  That section
provides:

(3) On application, and where the chair is satisfied that

(a) special circumstances existed which
precluded the filing of a notice of appeal within the time period required in
subsection (1) or (2), and

(b) an injustice would otherwise
result,

the chair may extend the time to
file a notice of appeal even if the time to file has expired.

[10]

In the EOT Decision of 20 October 2006 WCAT held that the petitioner had
shown the existence of special circumstances within the meaning of subsection
3(a).  WCAT was further satisfied that an injustice would otherwise result if
an extension of time were refused.  The tribunal held, however, that the
petitioner had failed to explain adequately the delay in bringing the appeal,
and exercised its discretion against extending time.

[11]

In the EOT Reconsideration Decision of 8 January 2008 WCAT held that the
earlier decision was to be reviewed on a standard of patent unreasonableness,
as provided for by s. 58 of the
Administrative Tribunals Act
.  The
tribunal concluded that the decision under review was not only a rational
interpretation of s. 243(3) but was also a correct interpretation.  As grounds
to set aside and reconsider the earlier decision had not been established, it
was declared to stand as final and conclusive in accordance with section 255(1)
of the Act.

III.  Reasons for
Judgment in the Supreme Court of British Columbia

[12]

In considering the standard of review to be applied on the application
for judicial review, the learned chambers judge directed his attention to s. 58
of the
Administrative Tribunals Act
.  It provides:

58 (1) If the tribunals enabling Act contains a privative
clause, relative to the courts the tribunal must be considered to be an expert
tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert
tribunals under subsection (1)

(a) a finding of fact or law or an
exercise of discretion by the tribunal in respect of a matter over which it has
exclusive jurisdiction under a privative clause must not be interfered with
unless it is patently unreasonable,

(b) questions about the application
of common law rules of natural justice and procedural fairness must be decided
having regard to whether in all of the circumstances the tribunal acted fairly
and

(c) for all matters other than
those identified in paragraphs (a) and (b), the standard of review to be
applied to the tribunals decision is correctness.

(3) For the purposes of subsection (2) (a), a discretionary
decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in
bad faith,

(b) is exercised for an improper
purpose,

(c) is based entirely or
predominantly on irrelevant factors, or

(d) fails to take statutory requirements into account.

[13]

The judge identified the privative clause in the
Workers Compensation
Act
, at ss. 254 and 255, which provide:

254 The appeal tribunal has exclusive jurisdiction to inquire
into, hear and determine all those matters and questions of fact, law and
discretion arising or required to be determined under this Part and to make any
order permitted to be made, including the following:

(a)        all
appeals from review officers decisions as permitted under section 239;

(b)        all
appeals from Board decisions or orders as permitted under section 240;

(c)        all
matters that the appeal tribunal is requested to determine under section 257;

(d)        all
other matters for which the Lieutenant Governor in Council by regulation
permits an appeal to the appeal tribunal under this Part.

255 (1) Any decision or action of the chair or the appeal
tribunal under this Part is final and conclusive and is not open to question or
review in any court.

(2) Proceedings by or before the chair or appeal tribunal
under this Part must not

(a)        be
restrained by injunction, prohibition or other process or proceeding in any
court, or

(b)        be removed by certiorari or otherwise into any
court.

[14]

The judge considered that it is important to parse out when WCAT was
operating within its exclusive jurisdiction and when it was not.  He referred
to some decisions of the Supreme Court of British Columbia which held the
standard of review for WCAT decisions was patent unreasonableness, but he held
the view that those cases were not determinative.

[15]

The learned chambers judge then engaged in a standard of review
analysis as described in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008]
1 S.C.R. 190.  With respect to the tribunals expertise the judge said:

[51] Turning to the nature of the issue in question; in my
view, it is best characterized as a decision as to whether the word may in s.
243(3) of the
WCA
confers a residual discretion upon WCAT to reject
requests for extensions of time, even if WCAT determines that the two criteria
of special circumstances and injustice have been met. It is true that this
is a matter of statutory interpretation of WCATs home statute. However, it is
a different sort of matter than, for example, the definition of special
circumstances or injustice under s. 243(3). The question at hand is more
general than that, and lies more towards the general legal reasoning end of
the spectrum.

[52] A look at the authorities
cited by WCAT in the EOT Reconsideration when it determined the question bears
out the foregoing contention. In considering the meaning of the word may, the
Reconsideration Panel considered the words dictionary definition, the
Interpretation
Act
, R.S.B.C. 1996, c. 238 (which is, incidentally, not its home statute),
a textbook on statutory interpretation, and a structural and contextual
analysis of the
WCA
. I take these to be indicia (although I stress that
they are not determinative in this regard) that WCAT was engaged in general
legal reasoning, rather than invoking its specialized knowledge of workers
compensation issues. This tends to tilt the balance back toward the
correctness end of the deference spectrum. The Legislature could not have
intended WCAT to have the last word on matters of general legal interpretation
for issues that determine the extent of its own powers.

[16]

As to the purpose of the legislation he said:

[56] ... As stated before, the
issue cannot simply be characterized as who should be granted an extension of
time? but rather it is more properly described as what is the extent of
WCATs discretionary power? When viewed in this manner, the issue is not only
a matter of balancing the interests of a respondent and appellant in an appeal
process, but also encompasses the larger issue of balancing delegated power
between administrative bodies. Determinations of that nature are the province
of the judiciary.

[17]

And as to the nature of the question in issue, the judge said:

[61] As can be seen from the foregoing discussion, the
characterization of the nature of the question in issue is critical in the
functional and pragmatic approach. WCAT takes the position that the issue in
question here is one of statutory interpretation of its own statute, and thus
it should be granted deference:
Council of Canadians with Disabilities v.
Via Rail Canada Inc.
, 2007 SCC 15, at para. 92.

[62] However, WCAT recognizes
that a true jurisdictional question will not be one over which it has exclusive
jurisdiction (
Dunsmuir
, at para. 59). It nevertheless argues that the
question here is not a true jurisdictional question because the dispute is not
whether
WCAT has the power to extend the time to appeal a decision but rather
when
that power should be exercised. I disagree. This dispute encompasses both
questions  whether WCAT has a residual discretionary power to refuse to extend
the time to appeal (a true jurisdictional question), and when that power should
be exercised (not jurisdictional).

[18]

He concluded:

[63] Considering all the factors set out above, I conclude
that the legislature did not intend the question of whether WCAT has residual
discretion under s. 243(3) of the
WCA
to be one within the exclusive
jurisdiction of WCAT.

Conclusion on Standard of Review

[64] Since an application of the
functional and pragmatic approach to the residual discretion question in the
case at bar leads me to the conclusion that the question was not one within the
exclusive jurisdiction of WCAT, I thus conclude that in this case, the
appropriate standard of review for WCATs decision on that question is
correctness.

[19]

The judge then applied the standard of correctness to WCATs
interpretation of s. 243(3) and concluded that it was incorrect.  He said:

[116] In my view, the presence of
the injustice clause, as well as the legislative intent evinced in the
Core
Services Review
and elsewhere provide the appropriate clear case of
impelling context as contemplated in the jurisprudence. In such a context, the
word may in s. 243(3) of the
WCA
should be construed as being
imperative, and not conferring upon WCAT a residual discretion to reject
applications for an extension of time under that section, once the two
statutory criteria are met. Thus, the decision on this issue in the EOT
Reconsideration is incorrect.

[20]

The judge refused the petitioners request for mandatory relief and
referred the case back to WCAT for reconsideration.

IV. 
Discussion

[21]

As may be seen from the passages of the judges reasons quoted above, he
characterized the issue before WCAT as the extent of WCATs discretion under
s. 243(3) to extend time (para. 32); or as whether the language of s.
243(3) conferred a residual discretion to reject a request to extend time even
where the criteria of s. 243(3)(a) and (b) were met (para. 51); or as whether
WCAT has a residual discretionary power to refuse to extend the time to appeal
(a true jurisdictional question), and when that power should be exercised (not
jurisdictional) (para. 62).

[22]

All of these formulations characterize the issue for WCAT as a question
of jurisdiction.  In framing the issue in that way, the learned chambers judge
asked the wrong question, and consequently came to the wrong conclusion (at
paras. 63 and 64).

[23]

Section 58 of the
Administrative Tribunals Act
governs the
standard of review where, as in this case, the tribunals enabling Act contains
a privative clause.  The correct question for the judge to ask was which of the
standards set out in s. 58 applied to WCATs interpretation of its home statute. 
The issue at the standard of review stage is not the manner in which WCAT
interpreted s. 243(3), or the outcome of its interpretation, but rather the
degree of deference to be accorded to WCATs interpretation of the section, as prescribed
by s. 58 of the
Administrative Tribunals Act
.

[24]

To decide whether the tribunals findings are to be reviewed on a
standard of patent unreasonableness or a standard of correctness, the court
must determine whether the matter under consideration falls within the
tribunals exclusive jurisdiction under a privative clause.

[25]

In
United Brotherhood of Carpenters and Joiners of America, Local 527
v. British Columbia Labour Relations Board)
, 2006 BCCA 364, this Court
was of the opinion that that determination should be made by applying the
pragmatic and functional approach, taking into account four factors: the presence
or absence of a privative clause; the tribunals expertise relative to the
court; the purpose of the statute as a whole and the provision in particular;
and the nature of the problem under consideration.

[26]

There is some incongruity in using these factors to determine whether a
tribunal is acting within its exclusive jurisdiction for the purposes of s. 58,
because the section makes explicit use of them at other stages of the
analysis.  The presence or absence of a privative clause, for example, is the
threshold criterion for the applicability of s. 58.  The issue of whether a
question is one of fact, law, discretion, procedural fairness, or something
else determines the appropriate standard of review under s. 58(2) of the
Administrative
Tribunals

Act
.  Finally the expertise of the tribunal is, under s. 58(1)
determined by asking whether the tribunal is acting within its exclusive jurisdiction. 
To use it as a factor in determining exclusive jurisdiction would be circular.

[27]

Since
United Brotherhood
was decided, there have been further
developments in the law.  The pragmatic and functional approach was
significantly refined in
Dunsmuir v. New Brunswick
.  In that case, the Court
warned against a mechanical application of what it preferred to call the
standard of review analysis and noted that it will not always be necessary to
undertake an analysis of all four factors in the test to determine the appropriate
standard of review.

[63] The existing approach to determining the appropriate
standard of review has commonly been referred to as pragmatic and functional.
That name is unimportant. Reviewing courts must not get fixated on the label at
the expense of a proper understanding of what the inquiry actually entails.
Because the phrase pragmatic and functional approach may have misguided
courts in the past, we prefer to refer simply to the standard of review
analysis in the future.

[64] The analysis must be
contextual. As mentioned above, it is dependent on the application of a number
of relevant factors, including: (1) the presence or absence of a privative
clause; (2) the purpose of the tribunal as determined by interpretation of
enabling legislation; (3) the nature of the question at issue, and; (4) the
expertise of the tribunal. In many cases, it will not be necessary to consider
all of the factors, as some of them may be determinative in the application of
the reasonableness standard in a specific case.

[28]

Most recently, in
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal
Council
, 2010 SCC 43, the Supreme Court of Canada was called upon to
determine the standard of review applicable to the B.C. Utilities Commission, a
tribunal protected by a privative clause, and to which s. 58 of the
Administrative
Tribunals Act
applies.  While the reasoning of the Court is not entirely
explicit, it would appear that the Court simply considered the language of the
applicable privative clause to determine whether the matters addressed by the
tribunal were within its exclusive jurisdiction.

[29]

The approach endorsed by the Supreme Court of Canada, then, is somewhat
different than the one that this Court followed in
United Brotherhood of
Carpenters
.  Rather than considering all factors in the pragmatic and
functional approach to determine whether a matter is within the exclusive
jurisdiction of a tribunal under its privative clause, the preferred approach
is simply to examine whether the privative clause covers the matters in
issue.  While the common law standard of review analysis is instructive,
particular attention must be paid to the governing legislative provisions, such
as s. 58 of the
Administrative Tribunals Act
.

[30]

In the case before us, the matter in issue is the extension of an appeal
period under s. 243(3) of the
Workers Compensation Act
.  The language of
s. 254 of the
Workers Compensation

Act
manifestly places such a
matter under the exclusive jurisdiction of WCAT:

254 The appeal tribunal has
exclusive jurisdiction to inquire into, hear and determine all those matters
and questions of fact, law and discretion arising or
required
to be
determined under this Part ....

[31]

In the result, s. 58(2) of the
Administrative Tribunals Act
establishes the appropriate standard of review in this case.  The standard is
one of patent unreasonableness.

[32]

The decisions of WCAT cannot be said to be either irrational or
unreasonable.  Its interpretation of s. 243(3) is well within the range of
interpretive options, and is, in fact, the most reasonable interpretation.  In our
respectful opinion, WCATs decision is not only not patently unreasonable, it
is the same decision that a court would reach.

[33]

We would allow the appeals of both WCAT and WCB against the order
pronounced 5 May 2010.  It follows that the petitioners cross-appeal for
mandatory relief must be dismissed.

[34]

As the appellants did not seek costs, none are awarded.

The Honourable Chief Justice Finch

The Honourable Mr. Justice Groberman

I agree:

The Honourable Madam Justice
Kirkpatrick


