



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Downs Construction Ltd. v. Workers Compensation Appeal
  Tribunal,









2013 BCCA 13




Date: 20130115

Docket: CA039340

Between:

Downs Construction
Ltd. and Jerry Webster

Appellants

(Petitioners)

And

The Workers Compensation
Appeal Tribunal and Vicki Lynn Christianson

Respondents

(Respondents)




Before:



The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Chiasson





The Honourable Madam Justice Garson




Supplementary Reasons
to: Court of Appeal for British Columbia, October 4, 2012
(
Downs Construction Ltd. v. Workers Compensation Appeal Tribunal,
2012 BCCA 392, Vancouver Registry No. CA039340)




Counsel for the Appellant,
Downs Construction Ltd.:



L.A. Slater





Counsel for the Appellant, Webster:



H.F. Turnham





Counsel for the Respondent,
Workers Compensation Appeal Tribunal:



J.T. Lovell





Counsel for the Respondent, Christianson:



M.N. Hillard





Place and Date of Hearing:



Victoria, British
  Columbia

September 18, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

October
  4, 2012





Written Submissions Received:



December
  14, 2012





Date of Supplementary Judgment:



January 15, 2013













Written Reasons by:





The Honourable Mr. Justice Chiasson





Concurred in by:





The Honourable Mr. Justice Lowry
The Honourable Madam Justice Garson














Reasons for Judgment of the Honourable
Mr. Justice Chiasson:

Introduction

[1]

This decision considers a number of costs issues: whether to award costs
against an administrative tribunal; whether costs should be awarded against an
unsuccessful party who has acted reasonably; and, whether successful parties
who have different legal interests and who are represented by different
counsel, but who file a single factum, each should recover costs.

Background

[2]

Ms. Christianson and Mr. Webster worked for Downs Construction (Downs).
 In January 2006, Ms. Christianson suffered a stress-related injury as a result
of conduct of the appellant, Mr. Webster, while they were performing their
duties for Downs.  In January 2008, Ms. Christianson sued Downs and Mr.
Webster.  In their defence, they pleaded s. 10 of the
Workers Compensation
Act
, R.S.B.C. 1996, c. 492.  In short, s. 10 bars an action in lieu of
a possible claim under the
Act
where the injury arose out of and in the
course of employment.

[3]

Compensation for stress-related injury is available if the injury arose
out of and in the course of employment and the event giving rise to the injury
was not unexpected.

[4]

Ms. Christianson initiated a claim for compensation pursuant to s. 5.1
of the
Act
.  She was unsuccessful.  The Board concluded that the event
giving rise to her injury was not unexpected.  The Workers Compensation Appeal
Tribunal (WCAT) upheld the decision of the Board.

[5]

Pursuant to s. 257 of the
Act
, WCAT issued a certificate to the
court stating, among other things, that t
he mental stress
injury suffered by Ms. Christianson did not arise out of and in the course of
her employment.

[6]

Downs and Mr. Webster sought judicial review of WCATs
decision to refuse compensation and to issue the above-stated portion of the
certificate.  They were unsuccessful.  On October 4, 2012, this Court
allowed their appeal (reasons indexed at 2012 BCCA 392).  The appeal was
limited to the certificate. This Court ordered WCAT to issue a certificate
stating:

The mental stress injury suffered
by the plaintiff Vicki Lynn Christianson arose out of and in the course of her
employment within Part 1 of the
Workers Compensation Act
, but she is not
entitled to compensation because the event giving rise to the injury was not
unexpected as required by s. 5.1 of the
Act
.

[7]

WCAT and Ms. Christianson seek an order for no costs.  Mr. Webster and
Downs individually claim costs against WCAT and Ms. Christianson.  WCAT and Ms.
Christianson, in turn, contend that if this Court awards costs, only one set of
costs should be allowed.

Positions
of the parties

[8]

WCAT relies on
Lang v. British Columbia (Superintendent of Motor
Vehicles)
, 2005 BCCA 244, 43 B.C.L.R. (4th) 65, for the proposition that
generally costs are not awarded against an administrative tribunal on a
judicial review subject to two exceptions: (1) misconduct or perversity in
proceedings before the tribunal; or (2) the tribunal agues the merits of the
judicial review application rather than merely addresses its jurisdiction.  Downs
and Mr. Webster do not dispute this proposition.

[9]

Recognizing limitations that have been placed on the ability of an
administrative tribunal to defend its decision in court, WCAT asserts that it
was entitled to address the reasonableness of its determination.  Downs and Mr.
Webster contend WCAT went beyond its limited right to participate and argued
the merits of the appeal.

[10]

Ms. Christianson resists an award of costs against her.  She states that
the appeal concerned an important point of public law and that her
participation was reasonable.

[11]

Downs and Mr. Webster each seek costs on the basis that their interests
differed and, in some respects, were in conflict, which required them to be
represented by separate counsel.  WCAT and Ms. Christianson oppose this.

Discussion

[12]

In
Lang
, Mr. Justice Donald addressed the role of an
administrative tribunal in court proceedings and associated costs implications.
 He began by observing that the general rule is that an administrative tribunal
is neither entitled to costs nor liable for them.  He stated in paras. 48-50:

[48]      For the purposes of this case it is enough to
identify two exceptions:

1.         misconduct
or perversity in the proceedings before the tribunal; or

2.         the
tribunal argues the merits of a judicial review application rather than its own
jurisdiction.

[49]      Applying the second exception may not always be
clear cut.  There are at least two reasons for this.  First, the review by the
adjudicator under the scheme in question does not conform to the classic
adversarial model where opposing parties argue for and against the decision in
question.  The peace officer's report is the case, so to speak, for the
prohibition, and there is no argumentation back and forth before the
adjudicator as there would be in a conventional hearing.  This feature may
create a tendency on the part of the tribunal, or the Attorney General on its
behalf, to argue the case for the prohibition at judicial review.  The tendency
should be resisted, otherwise costs may be awarded.

[50]      Secondly, the
traditional restriction against the tribunal's arguing the merits of its own
decision, articulated clearly and emphatically in cases like
Canada Labour
Relations Board v. Transair
, [1977] 1 S.C.R. 722, 67 D.L.R. (3d) 421, and
Northwestern
Utilities Ltd. v. Edmonton (City)
, [1979] 1 S.C.R. 684, 89 D.L.R. (3d) 161,
has been relaxed somewhat by the decision in
CAIMAW v. Paccar of Canada Ltd
.,
[1989] 2 S.C.R. 983, 62 D.L.R. (4th) 437.
Paccar
permits the tribunal
to demonstrate that its decision was not patently unreasonable.

[13]

Donald J.A. then referred to
Northwestern Utilities Ltd. v. Edmonton
(City)
, [1979] 1 S.C.R. 684, 89 D.L.R. (3d) 161

and
CAIMAW v.
Paccar of Canada Ltd
., [1989] 2 S.C.R. 983, 62 D.L.R. (4th) 437, in which
Mr. Justice La Forest quoted with approval a passage of the judgment of Mr.
Justice Taggart in
British Columbia Government Employees'
Union v. Industrial Relations Council
(1988), 26
B.C.L.R. (2d) 145 at 153, 32 Admin L.R. 78 (C.A.):

The traditional basis
for holding that a tribunal should not appear to defend the correctness of its
decision has been the feeling that it is unseemly and inappropriate for it to
put itself in that position.  But
when the issue becomes, as it does in
relation to the patently unreasonable test, whether the decision was reasonable,
there is a powerful policy reason in favour of permitting the tribunal to make
submissions.  That is, the tribunal is in the best position to draw the
attention of the court to those considerations, rooted in the specialized
jurisdiction or expertise of the tribunal, which may render reasonable what
would otherwise appear unreasonable to someone not versed in the intricacies of
the specialized area
.  In some cases, the parties to the dispute may not
adequately place those considerations before the court, either because the
parties do not perceive them or do not regard it as being in their interest to
stress them. [Emphasis added by Donald J.A.]

[14]

Donald J.A. continued in para. 54:

[54]      When read closely, the
passage adopted by La Forest J. does not in my view provide the tribunal a
broad opportunity to argue the merits.  The matters before the adjudicator,
breathalyzer analysis and refusing a breath sample demand, are hardly
unfamiliar to the regular courts and so it will seldom be necessary for the
tribunal to expose some arcane or esoteric feature of the case in order to
understand why it arrived at its decision.  While the line between arguing the
merits and explaining the record is somewhat blurry when the test is patent
unreasonableness, there remains a boundary which must be observed.  It will be
up to the judgment of the reviewing judge in each case to determine if the
tribunal, or the Attorney General on its behalf, has gone too far.

[15]

I have reviewed the factums on appeal.  While WCAT did address policy
issues underlying workers compensation legislation and its theory of
determining whether an injury occurs
out of and in the course
of employment, i
t is clear, in my view, that WCAT argued the merits of
the appeal.  It dealt with the implications of the appeal for Ms. Christianson
and defended the approach taken by the Board and by WCAT.  In the unusual
circumstances of this case, I do not criticize WCAT for doing so, but Downs and
Mr. Webster were required to address WCATs contentions.  I would order WCAT to
pay costs.

[16]

While Ms. Christianson was a reluctant participant in that she was
content to have her claim for compensation rejected as a foundation for the
certificate advising the court that her injury did not occur
out
of and in the course of employment, the source of the dispute was her underlying
litigation against Downs and Mr. Webster. This obliged them to support her
subsequent application for workers compensation and, later, to resist the
certificate issued by WCAT, both in the Supreme Court and in this Court.  She
clearly had a significant interest in the outcome of the appeal.  She sought
and was awarded costs in the court below.  I also would order her to pay costs.

[17]

I would order that Downs and Mr. Webster are entitled
to one set of costs only.  They filed a joint factum.  While their interest in
the underlying litigation may differ and be in conflict, I do not think that
was the case on the appeal which concerned only the certificate.

Conclusion

[18]

Downs and Mr. Webster are entitled to one set of costs
against each of WCAT and Ms. Christianson.  I would order that each party bear
its own costs of the proceedings in the Supreme Court.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Mr. Justice Lowry

I agree:

The Honourable Madam Justice
Garson


