IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) WORKERS COMPENSATION APPEAL TRIBUNAL. - and

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1 COURT FILE NO IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) BETWEEN: AND BETWEEN: WORKERS COMPENSATION APPEAL TRIBUNAL - and FRASER HEALTH AUTHORITY, KATRINA HAMMER, PATRICIA SCHMIDT, and ANNE MACFARLANE KATRINA HAMMER, PATRICIA SCHMIDT, and ANNE MACFARLANE - and Appellant (Respondent) Respondent (Respondent) Appellants (Appellants) WORKERS COMPENSATION APPEAL TRIBUNAL and FRASER HEALTH AUTHORITY Respondents (Respondents) FACTUM OF THE APPELLANT, WORKERS COMPENSATION APPEAL TRIBUNAL (pursuant to Rule 42 of the Rules of the Supreme Court of Canada) Workers' Compensation Appeals Tribunal Jacombs Road Richmond, B.C. V6V 3B1 Timothy J. Martiniuk Telephone: (604) Fax: (604) tim.martiniuk@wcat.bc.ca Counsel for the Appellant/Respondent Workers Compensation Appeal Tribunal Borden Ladner Gervais LLP Barristers & Solicitors World Exchange Plaza 100 Queen Street, suite 1300 Ottawa, ON K1P 1J9 Tel: (613) Fax: (613) neffendi@blg.com Ottawa Agent for the Appellant/Respondent Workers Compensation Appeal Tribunal

2 Harris & Company Barristers & Solicitors Burrard St Vancouver, B.C. V6C 2B5 Nazeer T. Mitha Tel: (604) Fax: (604) Counsel for the Respondent Fraser Health Authority Gowling Lafleur Henderson LLP Barristers & Solicitors Elgin Street Ottawa, ON K1P 1C3 Jeffrey W. Beedell Tel: (613) Fax: (613_ Ottawa Agent for Counsel for the Respondent Fraser Health Authority Health Sciences Association of British Columbia 180 East Columbia Street New Westminster, BC V3L 0G7 Randall Noonan and Tonie Beharrell Tel: (604) Fax: (604) Counsel for the Respondents / Appellants Katrina Hammer et al. Gowling Lafleur Henderson LLP Barristers & Solicitors Elgin Street Ottawa, ON K1P 1C3 Matthew S. Estabrooks Tel: (613) Fax: (613_ matthew.estabrooks@gowlings.com Ottawa Agent for Counsel for the Respondents / Appellants Katrina Harmmer et al.

3 TABLE OF CONTENTS PART I OVERVIEW AND STATEMENT OF FACTS... 1 A. Overview of the Appellant s Position... 1 B. Procedural History... 4 (1) Claims for Compensation... 4 (2) Tribunal s Compensation Decisions... 4 (3) Tribunal s Reconsideration Decisions... 5 (4) B.C. Supreme Court Decision... 5 (5) B.C. Court of Appeal Decision... 6 (a) Meaning of Jurisdictional Defect... 8 (b) Composition of Reconsideration Panel... 9 (c) Object of Review... 9 (d) Standard of Review of Reconsideration Decision PART II QUESTIONS IN ISSUE PART III STATEMENT OF ARGUMENT A. Standard of Review (Statutory Interpretation Question) B. Legislative Framework C. WCAT s Administrative Practices D. Is it patently unreasonable to conclude that section 253.1(5) of the Act permits WCAT to reopen an appeal to cure a patently unreasonable error? (1) Unreasonableness is Jurisdictional (2) Common Law Supports Authority to Cure for Unreasonable Errors (3) Legislative History (4) WCAT s Interpretation not Patently Unreasonable (5) No Constitutional Impediment to WCAT s Interpretation E. Composition of Reconsideration Panels F. Object of Judicial Review and Standard of Review (Reconsideration Decisions) PART IV SUBMISSIONS ON COSTS PART V ORDER SOUGHT PART VI TABLE OF AUTHORITIES PART VII STATUTES AND REGULATIONS... 44

4 ii A. Workers Compensation Act, R.S.B.C.1996, c B. Administrative Tribunals Act, S.B.C. 2004, c C. Interpretation Act, R.S.B.C. 1996, c D. WCAT Manual of Rules of Practice and Procedure (MRPP) E. Decision #12, Decision of the Chair, Workers Compensation Appeal Tribunal (January 2, 2009)... 53

5 PART I OVERVIEW AND STATEMENT OF FACTS A. Overview of the Appellant s Position 1. At the heart of this appeal is the question of whether a patently unreasonable error in a final decision of an administrative tribunal is a jurisdictional defect such that the tribunal may revisit the decision to cure the error. 2. The majority of the Court of Appeal found that it is not. The appellant submits that it is. 3. The Workers Compensation Appeal Tribunal (WCAT) is the final level of appeal for most matters within the workers compensation system in British Columbia. Section 253.1(5) of the Workers Compensation Act 1 (Act) provides that the WCAT s statutory powers to amend a final decision in certain circumstances do not limit its ability at the request of a party to reopen an appeal in order to cure a jurisdictional defect. WCAT calls this process a reconsideration. 4. It is WCAT s position that a patently unreasonable error (or an unreasonable error, as the case may be), no less than a true question of vires or a breach of procedural fairness, amounts to a jurisdictional defect. This Court has consistently said so. Judicial review is built upon this principle. It is its foundation stone. Tribunals are never permitted to exceed their jurisdiction, even when their decisions are protected by a strong privative clause. Conversely, errors made within jurisdiction are immune from review. 5. While the precise nature of the jurisdictional defect whether a mistake regarding a true question of vires, a procedural unfairness, or an unreasonable error will affect the standard of review applicable to an administrative decision, it has no effect on its basic jurisdictional character. 6. It is reasonable to conclude that by giving it the power to reopen for jurisdictional defect the legislature intended WCAT to be able to reopen appeals in circumstances where a decision is patently unreasonable and to issue a new decision. A narrow interpretation of this statutory power that excludes reopening for unreasonableness requires a party to initiate and pursue court proceedings even in cases where the amount in dispute is small or where the tribunal agrees that 1 R.S.B.C. 1996, c. 492; see Factum, Part VII, Section A

6 2 it has issued an unreasonable decision. A primary goal of the workers compensation system and administrative schemes more generally is to ensure prompt adjudication without resort to complex and costly court proceedings. 7. The common law functus officio doctrine supports this interpretation of WCAT s statutory power. The leading case in the administrative law context is this Court s decision in Chandler v. Alberta Association of Architects 2. The majority of the Court found that the doctrine is to be applied flexibly to tribunals and confirmed that administrative tribunals have the power, even absent an express statutory provision, to reopen matters to cure certain types of errors. 8. Though the Court expressly identified only true questions of vires and procedural unfairness, the Court emphasized that the key question was whether the tribunal had discharged the function committed to it. As all adjudicative tribunals are charged with the duty to issue reasonable decisions, a tribunal will not have discharged its function if it fails to do so. For what could be more contrary to a tribunal s purpose and function than for it to issue a decision that is, in the case of patent unreasonableness, clearly irrational? 9. A second issue necessarily arises from the decision of the majority of the Court of Appeal. In addition to finding that the WCAT reconsideration decision was a nullity because it purported to consider whether the original decision was patently unreasonable, it also found that it was a nullity because the reconsideration was performed by someone other than the original decision maker. 10. On this issue, it is WCAT s position that it is reasonable to conclude that reconsiderations can be heard by panels other than the one that issued the original decision. Though not without limits, a tribunal has considerable scope to adopt procedures that it considers appropriate and fair. The Act does not restrict reopenings to the panel that issued the original decision. For good reason, as, at a minimum, there are circumstances where the original panel cannot, or should not, reopen - such as where a tribunal member is incapacitated or the member is tainted with a reasonable apprehension of bias. The effect of the Court s interpretation is to remove the flexibility a tribunal needs in order to avoid unnecessary court proceedings. 2 [1989] 2 S.C.R. 848, Appellant s Book of Authorities (ABOA), Vol. II, Tab 9.

7 3 11. Once it is determined that it is reasonable for WCAT to be able to reopen an appeal to cure a patently unreasonable error and that the reconsideration need not be performed by the original decision maker, the resulting conclusion is that the reconsideration decision is not a nullity and is properly the subject of judicial review. This conclusion leads to two additional issues: the object of judicial review and the appropriate standard of review to apply to it. 12. Where there is a reconsideration decision, the first issue concerns whether, the object of judicial review is the original decision or the reconsideration decision, or both. The second issue, the appropriate standard of review, depends on what is identified as the object of review. 13. While not necessary to its decision, given its findings that WCAT s reconsideration decision was a nullity, the majority of the Court of Appeal determined that the object of review should be the reconsideration decision only and tentatively determined that the standard of review of that decision should be patent unreasonableness. 14. On the first issue, WCAT takes the position that it makes practical sense for both the original and reconsideration decisions to be the object of review so as to avoid needless proceedings before the tribunal in the event that the reconsideration decision wrongly determines that there was no jurisdictional defect in the original decision. If the court cannot set aside the original decision at the same time, the decision would remain standing and WCAT would be required to engage in a second reconsideration process for which there could only be one result. Apart from this practical issue however, a finding that only the reconsideration decision is the object of review where such a decision exists is sound so long as the standard of review applied to the reconsideration decision is correctness and the review is informed by the original decision. 15. This then is WCAT s position on the second issue: the standard of review must be correctness of the reconsideration decision. If the object of review is both decisions then the standard of review remains correctness for the reconsideration decision and patent unreasonableness for the original decision. It would be constitutionally impermissible for a court to defer to a tribunal s conclusion about whether its decision contains a jurisdictional defect. 16. These last two issues will arise in all subsequent cases involving review of WCAT reconsideration decisions even if this Court finds that the reconsideration decision in this case is a

8 4 nullity (either because WCAT lacks the power to reconsider to cure patently unreasonable defects or because reconsiderations must be performed by the original decision maker, or both). This is because there is no dispute that WCAT has the power to reopen to cure errors of true jurisdiction and breaches of procedural fairness. B. Procedural History (1) Claims for Compensation 17. Several women were diagnosed with breast cancer after working in a hospital laboratory. There was a confirmed breast cancer cluster: the number of breast cancer cases in the laboratory exceeded the number that would be expected by at least a factor of three. 18. Ms. Hammer, Ms. Schmidt, and Ms. MacFarlane (the workers ) were among the women diagnosed with breast cancer. They applied to the Workers Compensation Board (Board) for compensation. The Board denied each claim, finding that their breast cancers were not due to the nature of their employment as required by section 6(1) of the Act. 3 The internal Review Division of the Board denied the workers requests for review of the Board s decisions. 4 (2) Tribunal s Compensation Decisions 19. The workers appealed the Review Division decisions to WCAT. By agreement, the appeals were heard together, though WCAT issued separate decisions for each worker. The majority of the WCAT panel that heard the appeals allowed each appeal. It found that the workers were entitled to compensation as it was at least as likely as not that the breast cancers were an occupational disease due to the nature of their employment. The majority relied, in part, on the fact that there was a higher than expected rate of breast cancer amongst laboratory workers and that they had been exposed to carcinogens at work The WCAT dissent would have denied the appeals on the basis that none of the experts who provided opinions in the case were able to say anything more than that work was one of 3 Joint Appeal Record (JAB), Vol. III, Tab 2, p JAB, Vol. III, Tab 1, p JAB, Vol. I, Tab 1, p. 1-49

9 5 several possible causes of the cancers. 6 The experts had found that another possibility was that the cancer cluster was simply a random cluster. The majority had found that an inference of causation was in keeping with ordinary common sense and that the experts were applying a higher standard of proof to their conclusions than is applicable in workers compensation matters. (3) Tribunal s Reconsideration Decisions 21. The workers employer, the Fraser Health Authority (the employer ), requested that the WCAT reopen its decisions pursuant to section 253.1(5) of the Act, alleging that they contained a jurisdictional defect. 7 It argued that the majority s conclusions were based on no evidence and were therefore patently unreasonable. A different WCAT panel than the panel that heard the appeals was assigned to hear the reconsideration applications. In 2011, in three separate decisions, the WCAT panel denied the applications. 8 The WCAT panel found that there was some evidence to support the majority s finding so the decisions were not patently unreasonable. Therefore the decisions did not contain a jurisdictional defect. (4) B.C. Supreme Court Decision 22. In three separate proceedings, the employer applied to the B.C. Supreme Court for judicial review of the WCAT s decisions. The Court ordered that all three matters be heard together. 9 Given that the WCAT s analysis had been the same in each case it was agreed that the judicial review would proceed in respect of Ms. Hammer s petition and that the result of her judicial review would apply to the judicial reviews of the two other workers. The B.C. Supreme Court proceeded on the basis that there were essentially only two decisions at issue, the WCAT original decision and the WCAT reconsideration decision. 23. The B.C. Supreme Court allowed the petition, finding that the WCAT original decision was patently unreasonable for having been based on no evidence. 10 It determined that by finding that the breast cancers were caused by workplace factors the WCAT was speculating in an area 6 JAB, Vol. I, Tab 1, p JAB, Vol. IV, Tab 1, p JAB, Vol. I, Tab 2, p JAB, Vol. I, Tabs JAB, Vol. I, Tab 3

10 6 where it had no expertise. The Court found that the WCAT reconsideration decision was incorrect for finding that the WCAT original decision was not patently unreasonable. The Court set aside the WCAT decisions and remitted the appeals back to the WCAT to be reheard. 24. Before the B.C. Supreme Court the parties agreed that the standard of review for the WCAT original decision was patent unreasonableness and the standard of review for the WCAT reconsideration decision was correctness. Neither the WCAT s ability to reconsider for patent unreasonableness nor its ability to reconsider with a different panel were issues raised by the parties or addressed by the Court. (5) B.C. Court of Appeal Decision 25. The workers appealed to the Court of Appeal. A few days prior to the hearing of the appeal the Court requested the parties address three issues: The jurisdiction of the WCAT reconsideration panel to reconsider the original decisions; The scope of judicial review in this instance (i.e. whether it could properly include both the original and reconsideration decisions); and the applicable standards of review in these circumstances. 26. The Court also advised counsel they may wish to consider the following Court of Appeal decisions: Vandale v. British Columbia, 2013 BCCA 391 at paras. 39 and 40, Lysohirka v. Workers Compensation Board of British Columbia, 2012 BCCA 457 at para. 14 (leave to appeal denied, [2013] S.C.C.A. No. 23), 11 and United Steel Workers v. Auyeung, 2011 BCCA 527 at paras The Court in Lysohirka determined that the Review Division of the Board lacks the jurisdiction at common law to reconsider its decisions on the basis that they are unreasonable. It did so on its view that this Court in Dunsmuir v. New Brunswick 13 restricted the meaning of 11 ABOA, Vol. I, Tab ABOA, Vol. II, Tab SCC 9, ABOA, Vol. I, Tab 17

11 7 jurisdictional error as the phrase is used in administrative law to true questions of jurisdiction. The Court in Auyeung determined that where the Labour Relations Board has reconsidered its own decision to determine if it is inconsistent with the Labour Relations Code, the reconsideration decision is the sole object of judicial review and is subject to a standard of review of patent unreasonableness. The Court in Vandale determined that the object of review issue did not need to be decided given the Court s conclusion in that case that the original decision was not patently unreasonable and the reconsideration decision had come to the same conclusion. 28. The hearing was adjourned to provide the parties with more time to make supplementary written submissions. The Court later granted intervener status to the Board, the Community Legal Assistance Society (CLAS), and the British Columbia Federation of Labour. The Court also granted the WCAT s subsequent request for the appeal to be heard by a five member division. The WCAT had advised the Court that it intended to argue that Lysohirka was wrongly decided for having concluded that this Court in Dunsmuir had restricted the meaning of jurisdictional error outside of the standard of review context. 29. At the hearing, the WCAT, the appellant workers, and the three interveners took the position that the reconsideration panel was able to reconsider the original decision for patent unreasonableness. The employer took no position on this question. 14 At the hearing the Court raised a fourth issue, namely whether a different panel could reconsider the original decision. 30. The majority of the Court of Appeal determined that the WCAT reconsideration decision was a nullity for having been made without authority. It was a nullity for two reasons: the WCAT does not have the authority to reconsider a WCAT decision on the basis of patent unreasonableness; and the reconsideration panel was not the same panel that had decided the appeals. 31. The majority of the Court of Appeal dismissed the workers appeals. On the compensation question the majority determined that the WCAT original decision was patently unreasonable for finding that the breast cancers were occupationally induced (though the majority was divided as to whether the evidence before WCAT amounted to no evidence or whether it 14 JAB, Vol. 1, Tab 5, para. 58

12 8 amounted to some evidence that nonetheless failed to provide a reasonable basis for WCAT s conclusion). The dissent found that when viewed through the lens of the underlying objectives of the workers compensation system, there was some evidence to support WCAT s conclusion. (a) Meaning of Jurisdictional Defect 32. On the issue of the WCAT s ability to reopen the majority found that it was patently unreasonable for WCAT to conclude that it had the ability, at common law or pursuant to section 253.1(5) of the Act, to consider whether a WCAT decision should be set aside on the basis that it is patently unreasonable. It said that WCAT s power to reopen an appeal to cure a jurisdictional defect is limited to curing errors of true jurisdiction and breaches of procedural fairness as it is only in those circumstances that the tribunal has failed to fulfill its statutory task. 33. The majority determined that section 253.1(5) preserves only the existing limited common law exceptions to the operation of the principle of functus officio. The exceptions do not extend to curing errors made within jurisdiction and an unreasonable error is an error made within jurisdiction. It found that this Court in Dunsmuir did not change the basic dichotomy between lack of jurisdiction and excess or loss of jurisdiction. While mindful of the adage that a tribunal does not have the jurisdiction to make patently unreasonable decisions, the majority determined that the functus officio decisions refer only to failures by tribunals to complete their mandatory tasks. The majority also queried whether a legislature could vest a tribunal with the authority of a superior court on judicial review. 34. The dissent concluded that the WCAT has the ability to reconsider for patent unreasonableness. It relied on the constitutional principle that a review for patent unreasonableness is a matter of jurisdiction. It found that Dunsmuir was not purporting to narrow the concept of jurisdiction adopted by this Court in Crevier v. Quebec (Attorney General) 15 when it referred to true questions of jurisdiction. It determined that this Court has not purported to apply the notion of true questions of jurisdiction outside the standard of review context. The dissent found that to the extent that the Court of Appeal in Lysohirka or Auyeung determined otherwise they should not be followed. 15 [1981] 2 S.C.R. 220, ABOA, Vol. I, Tab 13

13 9 35. The dissent also considered the fact that the phrase jurisdictional defect in section 253.1(5) was drafted prior to Dunsmuir and in the context of a government report recommending that the WCAT retain the ability exercised by its predecessor to cure patently unreasonable errors. Further, the dissent found that permitting the WCAT to reconsider for patent unreasonableness would not usurp the powers of the superior court to judicially review the tribunal s decisions as that avenue remained open to a party. Lastly, it found that to eliminate the WCAT s established practice of reconsidering for patent unreasonableness would be contrary to the purposes of the Act and to the principles of administrative law generally which includes the encouragement of the adjudication of disputes by specialized tribunals without the need to resort to courts. (b) Composition of Reconsideration Panel 36. The majority also determined that the WCAT reconsideration decision was a nullity as it was not decided by the WCAT panel that decided the appeals. 16 It found that it was patently unreasonable to conclude that the Act authorizes the WCAT chair to appoint a different panel to exercise the powers enumerated in section In the absence of new evidence, finality rests with the original decision maker. The dissent did not address this issue, though it could be said to have implicitly rejected the majority s conclusion given its ultimate finding that the reconsideration decision was correct. (c) Object of Review 37. The majority determined that had the reconsideration decision not been a nullity, it, and not the original decision, would have been the sole object of review as it represents the final decision of the tribunal. 17 However, the majority noted that judicial review of the reconsideration decision would clearly be informed by the original decision. 38. The dissent concluded that the appropriate approach was for both of the decisions to be reviewed. 18 It found that in circumstances like these, where the reconsideration decision does not replace the original decision, the issue is more of a practical problem than one of principle. It 16 JAB, Vol. 1, Tab 5, paras JAB, Vol. 1, Tab 5, paras , JAB, Vol. 1, Tab 5, paras 64-65

14 10 agreed with WCAT that reviewing only the reconsideration decision would lead to unnecessary proceedings before WCAT in the event that only the reconsideration decision was set aside. (d) Standard of Review of Reconsideration Decision 39. The majority suggested that patent unreasonableness was the appropriate standard to apply to the reconsideration decision. 19 However, it does not appear that it made a definitive decision on this issue (and it did not need to given its conclusion that the reconsideration decision was a nullity). The majority stated that it was questionable whether section 58 of the ATA mandates a correctness review in these circumstance as the reconsideration decision would appear to be a finding of fact or law and therefore subject to a deferential standard of review. The majority expressed the concern that if correctness was applied, the court would be giving less deference to the final WCAT decision than to a lower tribunal in the hierarchy of the administrative scheme. 40. The dissent concluded that the chambers judge was right to conclude that correctness should apply to the reconsideration decision. 20 It agreed with the WCAT s submission that no deference can be owed to a WCAT decision that is addressing the same question a court would on judicial review. In this way, the reconsideration decision must be correct as to whether the original decision was patently unreasonable. PART II QUESTIONS IN ISSUE 41. Did the Court of Appeal err in concluding that: (i) (ii) (iii) It is patently unreasonable to conclude that section 253.1(5) of the Act permits WCAT to reopen an appeal to cure a patently unreasonable error; It is patently unreasonable to conclude that a panel other than the original panel may reopen an appeal to cure a jurisdictional defect; If there is a valid reconsideration decision, the object of judicial review is solely the reconsideration decision; and 19 JAB, Vol. 1, Tab 5, paras JAB, Vol. 1, Tab 5, paras. 4, 65, 67, 69

15 11 (iv) If the reconsideration decision is the object of review, that the standard of judicial review of that decision is patent unreasonableness. PART III STATEMENT OF ARGUMENT A. Standard of Review (Statutory Interpretation Question) 42. As this is an appeal of a judicial review proceeding, this Court must identify the appropriate standard of review. This exercise is complicated by the fact that the issues engaged in this appeal arose at first instance at the Court of Appeal and on its own initiative. 43. In Lysohirka the Court of Appeal found that the correctness standard of review applied to the finding in a reconsideration decision of the Review Division of the Board that it had the authority to reconsider a decision for unreasonableness. 21 The Court of Appeal in that case found that the question at issue was a true question of jurisdiction. 44. However, WCAT agrees with the majority of the Court of Appeal that the standard of review of patent unreasonableness applies to the question of whether jurisdictional defect in section 253.1(5) includes patently unreasonable errors. This was the position of the interveners CLAS and the B.C. Federation of Labour before the Court of Appeal. WCAT also agrees with the majority that the question of whether the original decision maker must always be the one to cure a jurisdictional defect is subject to a standard of patent unreasonableness The standard of review analysis for many tribunals in British Columbia, including WCAT, is controlled by the Administrative Tribunals Act 23 (the ATA ). Section 58 of the ATA, which applies to WCAT by virtue of section of the Act, provides that patent unreasonableness applies to all findings of fact, law and discretion over which WCAT has exclusive jurisdiction. For all other substantive matters the standard of review is correctness. 46. The questions at issue are questions of law over which WCAT has exclusive jurisdiction. WCAT s privative clause provides that it has exclusive jurisdiction to inquire into, hear and 21 ABOA, Vol. I, Tab 23, paras JAB, Vol. 1, Tab 5, paras. 172 and 179. The dissenting justices did not address the issue of the standard of review in respect of these questions. 23 S.B.C. 2004, c. 45. Factum: Part VII, Section B

16 12 determine all those matters and questions of fact, law, and discretion arising or required to be determined under Part 4 of the Act. 24 Section 253.1(5) is found in Part 4 of the Act. These questions of law involve an interpretation of WCAT s own enabling statute. 47. When a tribunal is interpreting its own enabling statute it is presumed that a deferential standard of review applies unless the interpretation relates to a constitutional question, a question of law of central importance to the legal system as a whole and beyond the expertise of the tribunal, a question of the jurisdictional lines between two or more specialized tribunals, or a true question of jurisdiction or vires The presumption is not displaced in this case. There is no constitutional question nor a question of jurisdictional lines between two specialized tribunals. True questions of jurisdiction are rare and exceptional, perhaps non-existent. This Court has on several occasions expressed significant doubt whether the category serves any useful function A tribunal s interpretation of its home statute or a statute closely related to its function will be subject to correctness review when the issue raises a broad question of the tribunal s authority. 27 There is no question that WCAT has the power to reopen an appeal to cure a jurisdictional defect. Therefore, the interpretative question regarding section 253.1(5) does not raise a broad question of the tribunal s authority. 50. The question is what jurisdictional defect means. That is a narrow question of a tribunal s authority and no different than any number of other preliminary questions a tribunal must either explicitly or impliedly answer before addressing the primary matter before it. This Court long ago rejected the view, described as the preliminary questions doctrine, that a correctness standard of review applies to questions of fact or law upon which a tribunal s 24 Section 254 of the Act (the complete privative clause is comprised of both sections 254 and 255) 25 McLean v. British Columbia (Securities Commission), 2013 SCC 67 at para. 21, ABOA Vol. I, Tab ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45 (ABOA Vol. I, Tab 4); Alberta (Information and Privacy Commissioner) v. Alberta Teachers Commission, 2011 SCC 61, para. 30,34(ABOA, Vol. I, Tab 1) ( Alberta Teachers Commission ) 27 Nolan v. Kerry (Canada) Inc., 2009 SCC 29 at para. 34, ABOA, Vol. II, Tab 27

17 13 jurisdiction would be said to depend. 28 For example, on a modern approach, an interpretation WCAT might make of the term worker in the course of determining whether a person can appeal a decision to WCAT under the Act would no longer be labelled as jurisdictional just because WCAT has to ensure an applicant is a worker before they can appeal to WCAT. 51. The case of Kerton v. Workers Compensation Appeal Tribunal 29 concerned a WCAT decision that had determined that WCAT could refuse to extend the time to bring an appeal even in circumstances where the statutory requirements set out in section 243(3) of the Act had been satisfied. The B.C. Court of Appeal overturned the lower court s decision for inappropriately applying correctness to the WCAT s legal finding. The Court said: 21 As may be seen from the passages of the judge's reasons quoted above, he characterized the issue before WCAT as the "extent of WCAT's 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). 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 Though not the earliest rejection of the doctrine, this Court in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476 (ABOA, Vol. I, Tab 6, p ) describes why it places courts in an extremely difficult position. Also see Dunsmuir, supra, para BCCA 7, ABOA, Vol. I, Tab 21

18 14 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. 52. Lastly, the interpretation of WCAT s home statute does not involve a question of law of central importance to the legal system as a whole and beyond the expertise of the tribunal. WCAT s interpretation of jurisdictional defect is not necessarily determinative of how the similarly worded section 53(5) of the ATA applies to other tribunals, especially as the provision has been placed in WCAT s home statute. A tribunal s ability to reopen for jurisdictional defect may depend on the tribunal s individual context or history. Further, the fact that the phrase or a similar phrase has a meaning at common law does not necessarily make it a question of law of central importance. A tribunal may still be entitled to deference when interpreting a common law concept While examination of the issue does necessarily engage common law principles such as what jurisdictional defect means in judicial contexts and to that extent does not engage the specialized expertise of the tribunal, the overall question of the scope of WCAT s authority to cure a certain kind of error on reopening does fall within WCAT s specialized expertise. WCAT is able to bring its own specialized knowledge to bear on the question, including its appreciation for the context of the provision and the history of final appellate tribunals within the workers compensation system reopening decisions to cure defects. WCAT has had significant experience over the years with jurisdictional defect reconsideration applications and is in an ideal position to weigh the costs and benefits to the system of permitting reopening of final decisions to cure patently unreasonable errors. WCAT is in a unique position to consider the advantages and disadvantages of its chosen interpretation and its effects on the balance between finality and quality decision-making. Further, application of the patent unreasonableness standard of review to WCAT s determination of this issue does not prevent meaningful review by the courts. 54. Once it is determined that the matter is one over which WCAT has exclusive jurisdiction, a court need only identify the nature of the question and apply the mandated standard of review Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, para (ABOA, Vol. II, Tab 28); Jestadt v. Performing Arts Lodge Vancouver, 2013 BCCA 183, para. 35(ABOA, Vol. I, Tab 19) 31 Lavender Co-Operative Housing Assn. v. Ford, 2011 BCCA 114 at para. 43, ABOA Vol. I, Tab 22

19 15 Here, the question of the meaning of the phrase jurisdictional defect and appeal tribunal in section 253.1(5) are questions of law and the mandated standard for questions of law is patent unreasonableness. 55. Patent unreasonableness in the ATA has the meaning given to it by the common law at the time that the ATA came into effect. The meaning of patent unreasonableness at that time was as set out by this Court in Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52 as being clearly irrational or evidently not in accordance with reason. 32 B. Legislative Framework 56. Since March 3, 2003 the WCAT has been the final level of appeal in the workers compensation system in relation to most decisions. Initial decisions are made by the Board, and are reviewable by the Review Division. Most Review Division decisions are in turn appealable to the WCAT. WCAT is external to and independent of the Board. 57. At the time that the WCAT was created it had a statutory power under section 256 of the Act to reconsider its own final decisions on the basis of newly discovered evidence. 58. Section of the Act was enacted by way of a consequential amendment to the Act set out in section 186 of the ATA and was brought into force on December 3, Section of the Act empowers WCAT to amend its final decisions in certain circumstances, such as to correct clerical or accidental errors, or to clarify a decision. Section 253.1(5) states that the section must not be construed as limiting the appeal tribunal s ability, on request of a party, to reopen an appeal in order to cure a jurisdictional defect. The power is discretionary and can be exercised only upon application by a party. 59. Although section 253.1(5) uses the word reopen, the WCAT refers to applications under section as reconsideration applications so as to avoid confusion within the workers compensation system between these applications and applications to the Board to reopen a workers compensation claim for further benefits pursuant to section 96(2) of the Act where there 32 Pacific Newspaper Group Inc. v. Communications Energy and Paperworkers Union of Canada, Local 2000, 2014 BCCA 496, application for leave to the Court leave to SCC applied for on June 1, 2015, paras (ABOA, Vol. II, Tab 29)

20 16 has been a significant change in a worker s medical condition or a recurrence of a worker s injury Section is similar to section 53 of the ATA 34, which applies to a number of administrative tribunals in B.C.. 35 Section substitutes appeal tribunal for tribunal, refers to appeal instead of application, and provides WCAT an additional 60 days to amend a final decision and provides parties an additional 60 days to request a clarification of a final WCAT decision. Section 53 of the ATA provides a time period of 30 days. C. WCAT s Administrative Practices 61. Since its creation, and like its predecessor, the Appeal Division of the Board, the WCAT has been receiving and deciding applications brought by parties requesting the WCAT reconsider its own final decisions on the basis that the WCAT made a patently unreasonable error. The WCAT also receives and decides reconsideration applications brought on the basis that the WCAT was procedurally unfair or made an error of true, or narrow, jurisdiction. 62. Between 2004 and 2013 the WCAT decided 689 applications for reconsideration based on the sole argument that the original WCAT decision or process contained a jurisdictional defect. 36 Of these, 124 were allowed on the basis that the original WCAT process was unfair and 113 were allowed on the basis that the original decision was patently unreasonable. Only 14 were allowed on the basis of an error on a true question of jurisdiction. In that same time the WCAT issued over 47,500 decisions, not including summary decisions. Therefore, between 2004 and 2013 approximately 0.2% of WCAT decisions (or a portion thereof) were set aside on reconsideration on the basis that it was patently unreasonable. 63. At the time of the Court of Appeal s decision 37 the WCAT s policy regarding its ability to reconsider an appeal to cure a jurisdiction defect (and the policy in effect at the time of the 33 WCAT also refers to applications under section 256 as reconsiderations. Unless otherwise specified reconsideration in this factum refers to reopenings under section 253.1(5). 34 See Factum, Part VII, Section B 35 A tribunal s enabling statute will set out which sections of the ATA, if any, apply to it. 36 Affidavit #1 of Teresa White, sworn June 11, 2014: JAB, Vol. 5, Tab 2, pp (White Affidavit) 37 WCAT has since modified its practice in light of the Court of Appeal s decision.

21 17 WCAT reconsideration decisions) is set out in its Manual of Rules of Practice and Procedure (MRPP), which provided, in part, as follows 38 : Reconsideration to Cure a Jurisdictional Defect Section 253.1(5) states that provisions regarding amendment of errors or to clarify a decision do not limit WCAT s ability to cure a jurisdictional defect on the request of a party. A reconsideration is not an opportunity to re-argue the appeal. WCAT may set aside one of its decisions to cure a jurisdictional defect. There are three main types of jurisdictional defects: breaches of the duty of procedural fairness; patently unreasonable errors of fact, law or exercise of discretion in respect of matters that are within WCAT s exclusive jurisdiction; and, errors of law in respect of matters that are not within WCAT s exclusive jurisdiction. An application for reconsideration to cure a jurisdictional defect calls into question the validity of the decision. WCAT will apply the same standards of review to reconsiderations to cure jurisdictional defects as will be applied by the court on judicial review (item ). 64. Reconsideration applications to the WCAT proceed in two stages. 39 Depending on the grounds alleged in the application, at the first stage a WCAT panel will determine, in relation to the original WCAT decision or portion thereof, whether there is new evidence or a jurisdictional defect. This stage determines whether that threshold test has been met. If the threshold is not met the original decision stands. In this way, and as noted by the dissent, the reconsideration decision does not replace the original decision Though substantial reasons are given in many stage one decisions, they may not be necessary where the reconsideration panel finds that there is no patently unreasonable error, as the original decision and its reasoning can stand on its own. The B.C. Court of Appeal has found acceptable in the case of the Labour Relations Board very brief reasons on reconsideration White Affidavit: JAB, Vol. 5, Tab 2, p White Affidavit: JAB, Vol. 5, Tab 2, p Reasons: JAB, Vol. 1, Tab 5, para British Columbia Ferry and Marine Workers Union v. British Columbia Ferry Services Inc., 2013 BCCA 497, ABOA, Vol. I, Tab 7, para. 41

22 If the threshold is met, the decision, or the impugned part, is set aside and the second stage involves a rehearing of the appeal, in whole or in part, either to consider only the new evidence, or in the case of a jurisdictional defect, to hear the matter again. 67. The WCAT usually issues a separate numbered decision at each stage in the reconsideration process. Stage one of the reconsideration process is normally heard by way of written submissions only as the threshold question is a question of law. Stage two of the process, the rehearing, if there is one, is heard either by written submissions or an oral hearing. 68. Although not a formal stage in the reconsideration process, all reconsideration applications are first reviewed by a lawyer in the WCAT s Tribunal Counsel Office to determine whether the applicant has set out potential grounds for a reconsideration (item # MRPP). 42 If potential grounds have been set out the application proceeds to the first stage. If potential grounds do not appear to have been set out the WCAT provides the applicant with information about what constitutes potential grounds for reconsideration. It is then open to an applicant to make further submissions to explain why his or her concerns regarding the original WCAT decision constitute potential grounds for reconsideration. 69. The WCAT does not charge applicants any fees for a reconsideration 43 and the reconsideration process is voluntary for applications based on jurisdictional defect. The WCAT does not have the authority to reconsider on its own motion. 70. In the event of a judicial review, the WCAT has always taken the position that a petitioner does not need to first exhaust the 253.1(5) reconsideration process. This position was based on the view that it should be left to the petitioner to decide whether he or she wished to proceed directly to judicial review given that the WCAT was answering the same question the court would. The majority of the Court of Appeal determined that exhaustion was required if the WCAT had the ability to review for patent unreasonableness as it was an adequate alternative remedy (the dissent did not make any finding in this regard). The Court of Appeal s analysis 42 White Affidavit: JAB, Vol.5, Tab 2, p. 64, para White Affidavit: JAB, Vol. 5, Tab 2, p. 65, para. 8

23 19 would apply equally to circumstances where a petitioner is seeking judicial review on the basis that the WCAT made a error of true jurisdiction or was procedurally unfair. D. Is it patently unreasonable to conclude that section 253.1(5) of the Act permits WCAT to reopen an appeal to cure a patently unreasonable error? 71. As set out above, the majority of the Court of Appeal in this case determined that WCAT s statutory power to reopen to cure a jurisdictional defect merely preserves the power a tribunal has at common law to reopen a decision. The majority found that this power extends to curing procedural unfairness as well as errors relating to true questions of jurisdiction but does not extend to review for reasonableness. It concluded that this extension is unwarranted on review of the authorities relating to the doctrine of functus officio because unreasonableness is not jurisdictional for purposes of reconsideration. 72. WCAT submits that its legal finding that section 253.1(5) includes the ability to cure patently unreasonable decisions is not patently unreasonable. As WCAT s ability in this regard was not challenged by any of the parties before WCAT, the WCAT reconsideration decision only briefly references it. A thorough analysis was undertaken in 2013 by a different WCAT panel following the B.C. Court of Appeal s decision in Lysohirka. 44 That panel concluded that jurisdictional defect includes patently unreasonable errors. Where it is appropriate for a court to address a new issue on judicial review not addressed by the tribunal the court may consider other decisions of the tribunal on that issue. 45 (1) Unreasonableness is Jurisdictional 73. The majority accepted that a tribunal does not have the jurisdiction to make an unreasonable (or patently unreasonable) decision. It accepted that a tribunal can have jurisdiction in the narrow sense of the word but lose jurisdiction by issuing an unreasonable decision. 74. This principle is well established. Numerous decisions of this Court have established that review for patent unreasonableness is a review for jurisdictional defect. Some of these decisions are set out below (emphasis added). 44 WCAT , ABOA, Vol. II, Tab Alberta Teachers Commission, supra.

24 Douglas Aircraft Co. of Canada v. McConnell 46 : The spectrum of judicial review is completed by a bare reference to the restricted supervisory role of a court when faced with a privative clause The only test in this category of judicial review is one of jurisdiction of the administrative tribunal. All the categories of review by certiorari and motion to set aside mentioned above bear some jurisdictional hue. Even the assignment of unreasonable meaning reflects this hue... It is undoubtedly the trend in the application of judicial review, be it certiorari or a procedural or statutory equivalent, to limit the scope of review to matters of jurisdiction in the narrow sense and to those errors of law which approximate jurisdictional issues in the broadest sense....unfairness, the adoption of procedures contrary to natural justice, arbitrary conduct, refusal to discharge their function, fraud and bias in law, are all matters that transcend the classification of error in law on the face of the record. They are all jurisdictional in the fundamental sense of that term, and hence are reviewable through certiorari or its equivalent, with or without a privative clause. Such errors of law are not the same as but are equatable to the jurisdictional error which may arise from wrongful conclusions in statutory interpretation as in the Jarvis case, supra. Similarly, a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional...whatever form the administrative board or agency takes on, the interest of the community will always require the supervision which will ensure to the community the first rule of an organized community, and that is that all inhabitants, legal and natural, must participate in the workings of the community within their assigned role or region. 76. Blanchard v. Control Data Canada Ltd. 47 (judgment of Mr. Justice Lamer): An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable. The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts. In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal. 77. Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission) 48 : 46 [1980] 1 S.C.R. 245, ABOA, Vol. I, Tab [1984] 2 S.C.R. 476, ABOA, Vol. I, Tab 6