Court File No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) WORKERS COMPENSATION APPEAL TRIBUNAL

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1 BETWEEN: Court File No IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) AND BETWEEN: AND 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) RESPONDENTS (Respondents) APPELLANTS (Appellants) WORKERS COMPENSATION APPEAL TRIBUNAL AND FRASER HEALTH AUTHORITY RESPONDENTS (Respondents) ATTORNEY GENERAL OF CANADA, ONTARIO NETWORK OF INJURED WORKERS GROUPS AND INDUSTRIAL ACCIDENT VICTIMS GROUP OF ONTARIO, COMMUNITY LEGAL ASSISTANCE SOCIETY AND BRITISH COLUMBIA FEDERATION OF LABOUR and ATTORNEY GENERAL OF ONTARIO INTERVENERS FACTUM OF THE RESPONDENT (FRASER HEALTH AUTHORITY RESPONDING TO WORKERS COMPENSATION APPEAL TRIBUNAL) (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

2 - 2 - HARRIS & COMPANY Barristers and Solicitors 550 Burrard Street, Suite 1400 Vancouver, BC V6C 2B5 Telephone: (604) Facsimile: (604) nmitha@harrisco.com drideout@harrisco.com Nazeer T. Mitha Dianne D. Rideout Counsel for the Respondent, Fraser Health Authority GOWLING LAFLEUR HENDERSON LLP Barristers and Solicitors 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Telephone: (613) Facsimile: (613) jeff.beedell@gowlings.com Jeffrey W. Beedell Ottawa Agent for Counsel for the Respondent, Fraser Health Authority WORKERS' COMPENSATION APPEALS TRIBUNAL Jacombs Road Richmond, BC V6V 3B1 Telephone: (604) Facsimile: (604) Tim.Martiniuk@wcat.bc.ca Timothy Martiniuk Counsel for the Appellant, Workers Compensation Appeal Tribunal BORDEN LADNER GERVAIS LLP Barristers and Solicitors World Exchange Plaza 100 Queen Street, Suite 1300 Ottawa, ON. K1P 1J9 Telephone: (613) Facsimile: (613) neffendi@blg.com Nadia Effendi Ottawa Agent for Counsel for the Appellant, Workers Compensation Appeal Tribunal HEALTH SCIENCES ASSOCIATION OF BRITISH COLUMBIA 180 East Columbia Street New Westminster, BC V3L 0G7 Telephone: (604) Ext: 505 Facsimile: (604) rnoonan@hsabc.org Randall Noonan Tonie Beharell Counsel for the Appellants, Katrina Hammer, Patricia Schmidt and Anne Macfarlane GOWLING LAFLEUR HENDERSON LLP Barristers and Solicitors 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 Telephone: (613) Facsimile: (613) matthew.estabrooks@gowlings.com Matthew S. Estabrooks Ottawa Agent for Counsel for the Appellants, Katrina Hammer, Patricia Schmidt and Anne Macfarlane

3 - 3 - ATTORNEY GENERAL OF CANADA 130 King Street West, Suite 3400 The Exchange Tower, Box 36 Toronto, ON M5X 1K6 Telephone: (416) Facsimile: (416) christine.mohr@justice.gc.ca Christine Mohr Alexander Pless Counsel for the Intervener, Attorney General of Canada ATTORNEY GENERAL OF CANADA 50 O'Connor Street, Suite 500, Room 557 Ottawa, ON K1A 0H8 Telephone: (613) Facsimile: (613) christopher.rupar@justice.gc.ca Christopher M. Rupar Ottawa Agent for Counsel for the Intervener, Attorney General of Canada IAVGO COMMUNITY LEGAL CLINIC 489 College Street, Suite 203 Toronto, ON M6C 1A5 Telephone: (416) Facsimile: (416) petricoiv@lao.on.ca Ivana Petricone Maryth Yachnin Joel Schwartz Counsel for the Interveners, Ontario Network of Injured Workers' Groups and Industrial Accident Victims' Group of Ontario COMMUNITY LEGAL SERVICES- OTTAWA CARLETON 1 Nicholas Street, Suite 422 Ottawa, ON K1N 7B7 Telephone: (613) Ext: 224 Facsimile: (613) bossinm@lao.on.ca Michael Bossin Ottawa Agent for Counsel for the Interveners, Ontario Network of Injured Workers' Groups and Industrial Accident Victims' Group of Ontario ETHOS LAW GROUP LLP Barristers and Solicitors Granville Street, Suite 1124 Vancouver, BC V6C 1V5 Telephone: (604) Facsimile: (866) monique@ethoslaw.ca Monique Pongracic-Speier Counsel for the Interveners, Community Legal Assistance Society and British Columbia Federation of Labour JURISTES POWER Barristers and Solicitors 130 Albert Street, Suite 1103 Ottawa, ON K1P 5G4 Telephone: (613) Facsimile: (613) jdubois@juristespower.ca Justin Dubois Ottawa Agent for the Counsel for the Interveners, Community Leal Assistant Society and British Columbia Federation of Labour

4 - 4 - ATTORNEY GENERAL OF ONTARIO 720 Bay Street, 8th Floor Toronto, ON M5G 2K1 Telephone: (416) Facsimile: (416) sara.blake@jus.gov.on.ca Sara Blake Sandra Nishikawa Counsel for the Intervener, Attorney General of Ontario BURKE-ROBERTSON Barristers and Solicitors 441 MacLaren Street, Suite 200 Ottawa, ON K2P 2H3 Telephone: (613) FAX: (613) rhouston@burkerobertson.com Robert E. Houston, Q.C. Ottawa Agent for the Intervener, Attorney General of Ontario

5 Table of Contents PART I - STATEMENT OF FACTS...1 Overview...1 Factual Background...2 The Framework of the Act...3 PART II STATEMENT OF THE QUESTIONS IN ISSUE...6 PART III STATEMENT OF ARGUMENT...7 Overview...7 Does a tribunal have any common law power (or inherent power) to reopen or reconsider its own final decisions for patently unreasonable errors?...10 Other jurisdictions consideration of tribunal s common law power to reconsider their own final decisions...17 History of Administrative Tribunals...18 What statutory powers are granted to WCAT to reconsider its own final decisions for patent unreasonableness?...23 Express Statutory Powers...23 a. Common law terms are informed by and evolve with the common law...27 b. Overrule Dunsmuir...29 c. Untenable interpretation of the Act...32 Require the Court to ignore or override section 58 of the ATA...32 Incoherent interpretation of the Act as a whole...34 d. Create unconstitutional scheme...35 No implied statutory power...37 Policy Issues...37

6 ii PART IV SUBMISSIONS IN SUPPORT OF ORDER FOR COSTS...38 PART V ORDERS SOUGHT...38 PART VI TABLE OF AUTHORITIES...39 PART VII STATUTES...41

7 1 PART I - STATEMENT OF FACTS Overview 1. Broadly speaking, this appeal concerns the finality of administrative decision-making. Once a tribunal has reached its decision on the issue entrusted to it by the legislature, the doctrine of functus officio applies. A tribunal cannot then, as this Court stated in Chandler v. Alberta Association of Architects revisit its decision because it has changed its mind, made an error within jurisdiction, or because there has been a change of circumstances. 1 [emphasis added] 2. Section 253.1(5) of the Workers Compensation Act, preserves the ability of WCAT to reopen an appeal "to cure a jurisdictional defect". 2 The Court has repeatedly held that courts should not be alert to brand as jurisdictional, that which may be doubtfully so. 3 Jurisdictional errors are reviewed without deference, on a standard of correctness. Nonjurisdictional errors are reviewed deferentially, on the basis of reasonableness or (if the statute so requires) patent unreasonableness. 3. In this appeal, the appellant, the Workers Compensation Appeal Tribunal ( WCAT ), seeks to obliterate, for all practical purposes, the distinction between a "jurisdictional defect" and an "error within jurisdiction", by proposing that all errors of reasonableness and patent unreasonableness be treated as "jurisdictional defects". Such a backward step would undo decades of judicial efforts to reform administrative law to clarify and limit the scope of jurisdictional error or "jurisdictional defects", and must be rejected. 4. The practical effect of acceptance of WCAT s position would be to add uncertainty and lack of finality to administrative decision making, prolong instead of expedite the administrative 1 Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102 [Chandler], Appellant s Book of Authorities, Vol. 1, Tab 11, p. 861 [ABOA]. 2 Workers Compensation Act, R.S.B.C. 1996, c. 492 [the Act]. 3 Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., (1979), D.L.R. (3d) 417, [1979] 2 S.C.R. 227 [CUPE], Respondent s Joint Book of Authorities, Tab 4, p. 233 [RBOA].

8 2 process, and interfere with if not pre-empt the proper operation of the process of judicial review mandated by section 96 of Constitution Act, Factual Background 5. This appeal arises from claims made for workers compensation benefits by a number of former workers of the respondent, the Fraser Health Authority ( Fraser Health ) Ms. Hammer was one of six laboratory technicians employed at the Mission Memorial Hospital who contracted breast cancer. Ms. Hammer s case was chosen as a representative of this cluster to proceed through the courts below Ms. Hammer applied to the Workers Compensation Board (the WCB ) for workers compensation benefits. The WCB initially denied her claim for benefits on the grounds that the workplace had not been shown to have caused or materially contributed to the her condition Ms. Hammer appealed to the review division of the WCB and the decision of the WCB was confirmed Ms. Hammer then appealed to WCAT. WCAT allowed the appeal and found that Ms. Hammer had met the burden of proof in establishing a causal connection between the breast cancers and the workplace (the Original Decision ) Fraser Health applied to WCAT for reconsideration its Original Decision. The WCAT Panel reviewed its own final decision on a standard of patent unreasonableness and found that its Original Decision was not patently unreasonable (the Reconsideration Decision ). 4 Constitution Act, 1867, (UK) 30 & 31 Vict., c. 3, s. 96 [Constitution Act]. 5 Joint Record of the Appellants and Respondents, Vol. 1, p. 109, para. 2 [JAR]. 6 JAR, Vol. 1, p. 109, para JAR, Vol. 1, p. 109, para JAR, Vol. 1, p. 109, para JAR, Vol. 1, p. 109, para. 2.

9 3 11. Fraser Health applied to the Supreme Court of British Columbia for judicial review of WCAT s Original Decision and Reconsideration Decision. The chambers judge allowed the application for judicial review and quashed both WCAT decisions on the basis that there was no evidence capable of supporting the Original Decision and that WCAT s Reconsideration Decision was incorrect Ms. Hammer appealed the chambers decision to the British Columbia Court of Appeal. The Court of Appeal directed that the matter be heard by a five-judge panel and requested that in addition to the merits of the case, the parties also address the following issues: a. WCAT s jurisdiction to reconsider its own final decisions; b. which decision should be reviewed: the Original Decision or the Reconsideration Decision; and c. the standard of review to be applied on reconsideration The majority of the Court of Appeal found that WCAT did not have the authority to reconsider its own final decisions on the basis of patent unreasonableness, and on that basis, determined that the Reconsideration Decision was a nullity. The majority of the Court of Appeal also agreed with the chambers judge that WCAT s Original Decision was patently unreasonable. The Framework of the Act 14. To commence a claim for workers compensation benefits in British Columbia, a worker begins with an application to the WCB under section 55 of the Act. Section 96(1) of the Act sets out the jurisdiction and powers of the WCB to make a decision. Section 96 (2) of the Act provides that the WCB may reopen a matter previously decided by the WCB under section 96(1) in the limited circumstances where there has been a significant change in the worker s medical condition or there has been a recurrence of the worker s injury. 10 JAR, Vol. 1, p. 109, para JAR, Vol. 1, p. 109, para. 1.

10 4 15. Pursuant to section 96.2 of the Act, any person affected by a WCB officer s order or decision may request a review of that order or decision by the Review Division of the WCB. 16. Subject to sections 96.5 and 239, a decision by the Review Division is final and the WCB must comply with that decision. Decisions of the Review Division are protected by privative clauses in sections 96(1) and 115(1). 17. Most decisions of the Review Division may be appealed to the WCAT pursuant to sections 239 and 240 of the Act. However, some decisions of the Review Division cannot be appealed to WCAT and the Review Division decision represents the final decision in the workers compensation system and is subject to judicial review (section 239(2)). 18. WCAT was created by amendments to the Act which became effective on March 3, Section 253 of the Act sets out the powers of WCAT to make a decision on an appeal from the Review Division of the WCB. This section provides broad powers to confirm, vary or cancel the appealed decision or order. 20. Section of the Act provides that WCAT can, under certain circumstances, seek to amend its final decision. Section provides: Amendment to final decision (1) If a party applies or on the appeal tribunal's own initiative, the appeal tribunal may amend a final decision to correct any of the following: (a) a clerical or typographical error; (b) an accidental or inadvertent error, omission or other similar mistake; (c) an arithmetical error made in a computation. (2) Unless the appeal tribunal determines otherwise, an amendment under subsection (1) must not be made more than 90 days after all parties have been served with the final decision. 12 Workers Compensation Amendment Act, (No. 2), S.B.C. 2002, c. 56.

11 5 (3) Within 90 days after being served with the final decision, a party may apply to the appeal tribunal for clarification of the final decision and the appeal tribunal may amend the final decision only if the appeal tribunal considers that the amendment will clarify the final decision. (4) The appeal tribunal may not amend a final decision other than in those circumstances described in subsections (1) to (3). (5) This 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. 13 [emphasis added] 21. Section 253.1(5) of the Act is similar to the provision set out in section 53(5) of the Administrative Tribunals Act. 14 As a result, any decision of this court with respect to section 253.1(5) of the Act will be applicable to every tribunal in British Columbia which is subject to the ATA. 22. Section 256 of the Act sets out the powers of WCAT to reconsider its own decisions. Section 256 provides: Reconsideration of appeal decision 256(1) This section applies to a decision in (a) a completed appeal by the appeal tribunal under this Part or under Part 2 of the Workers Compensation Amendment Act (No. 2), 2002, and (b) a completed appeal by the appeal division under a former enactment or under Part 2 of the Workers Compensation Amendment Act (No. 2), (2) A party to a completed appeal may apply to the chair for reconsideration of the decision in that appeal if new evidence has become available or been discovered. (3) On receipt of an application under subsection (2), the chair may refer the decision to the appeal tribunal for reconsideration if the chair is satisfied that the evidence referred to in the application (a) is substantial and material to the decision, and 13 Workers Compensation Act, supra s Administrative Tribunals Act, S.B.C. 2004, c. 45 [the ATA]; section 53(5) states this section must not be construed as limiting the tribunal's ability, on request of a party, to reopen an application in order to cure a jurisdictional defect.

12 6 (b) did not exist at the time of the appeal hearing or did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered. (4) Each party to a completed appeal may apply for reconsideration of a decision under this section on one occasion only As can be seen from the above, the Act provides for two appeal bodies. The Review Division is an internal review body made up of Review Officers who are employees of the WCB. Appeals from final decisions of the Review Division of the WCB can be appealed to the second appeal body, namely WCAT. WCAT is considered to be an external review body as it is not subject to WCB governance and its members are appointed by the Lieutenant Governor in Council. PART II STATEMENT OF THE QUESTIONS IN ISSUE 24. Fraser Health does not agree with WCAT s formulation of the issues. WCAT seeks to protect its own interpretation of its jurisdiction by imposing on the Court the standard of review of "patent unreasonableness" to assess WCAT's assertion of a virtually unlimited jurisdiction to reconsider its own past decisions. However it is up to the courts, not WCAT, to determine the proper scope of WCAT's jurisdiction. Nevertheless, if WCAT's formulation of the issues is to be considered, Fraser Health s position on those issues is as follows: a. 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; b. it is patently unreasonable to conclude that a panel other than the original panel may reopen an appeal to cure a jurisdictional defect; c. the Court of Appeal did not err in concluding that, if there is a valid reconsideration decision, the object of judicial review is solely the reconsideration decision; and 15 Workers Compensation Act, supra s. 256.

13 7 d. the Court of Appeal did not err in concluding that, if there is a valid reconsideration decision, the standard of judicial review of that decision is patent unreasonableness. 25. Fraser Health would frame the issues differently than WCAT on this Appeal. 26. The core issue on this appeal concerns the power of an administrative tribunal to reopen or reconsider its own final decision for reasonableness or patent unreasonableness. In order to determine this issue, the following sub issues arise once WCAT has made its final decision: a. Does WCAT have a common law power to reopen or reconsider its own final decisions for unreasonable or patently unreasonable errors? b. Does WCAT s enabling statute, the Workers Compensation Act, empower it to reopen or reconsider its own final decisions for unreasonable or patently unreasonable errors? Each of these sub issues will be discussed in more detail below, after providing an overview of Fraser Health s arguments. PART III STATEMENT OF ARGUMENT Overview 28. WCAT argues that it has the power to reopen a final decision to review it for a patently unreasonable error. It is argued that the authority to reconsider final decisions derives from one of two sources: (1) the common law (as described in this court s decision of Chandler; and/or (2) from section 253.1(5) of the Act. WCAT is wrong on both accounts. 29. The idea that an administrative tribunal has any common law power is misplaced. Administrative tribunals do not possess any inherent power or authority flowing from the common law. Inherent powers are reserved exclusively for superior courts. The source of authority or power for any administrative tribunal is solely its enabling statute. Accordingly, 16 Workers Compensation Act, supra.

14 8 a tribunal only has powers which are implied by, or included in, express legislative grants of power. Importantly, every administrative tribunal must act solely within the powers delegated to it by its enabling statute. 30. This court s decision in Chandler does not confer any common law power on a tribunal to reconsider its final decision. Rather, Chandler confirms that a tribunal is able to reopen its final decision in limited circumstances to correct non-substantive slips and errors which result in the tribunal not exercising the jurisdiction given to it. That is, an administrative tribunal is only entitled to reopen a matter to fulfill or discharge the functions delegated to it by its enabling statute. Chandler cannot be interpreted as a decision which provides a tribunal with the common law power to reopen its final decision for a review of reasonableness. 31. At paragraph 109 of WCAT s factum, WCAT states that [a] tribunal that has issued an unreasonable decision has not completed its function. 17 WCAT goes on to argue that as a result, a tribunal can reopen its final decision to reconsider it. The natural extension to WCAT s argument would be that a tribunal would be permitted to continue reopening its final decision (as many times as necessary) where it believes that its final decision may be an unreasonable decision. Stated simply, all decisions would be subject to reconsideration without end: finality would have no place. Such a scheme is untenable. A tribunal has completed its function when it has made a final decision. It is then for the courts to review that decision to determine if it is reasonable. 32. In the absence of a common law power, the only source of authority or power which an administrative tribunal such as WCAT possesses is that set out in its enabling statute. WCAT argues that section 253.1(5) of the Act expressly empowers it to reopen its final decision for review or reconsideration on the basis of patent unreasonableness. To determine whether this is correct requires an interpretation of that section of the Act. 17 Factum of the Appellant, Workers Compensation Appeal Tribunal, pp , para. 109 [FAP].

15 9 33. Interpreted properly, section 253.1(5) does not confer any power on WCAT to reopen a final decision to determine if it is patently unreasonable. Section only preserves the ability of an administrative tribunal to reopen its final decision to cure any jurisdictional defect. What constitutes a jurisdictional defect must be looked at, not as if the tribunal has some inherent common law power, but rather as a matter of statutory interpretation. Stated another way, what does that term mean in the context of the Act? 34. Many statutes use terms derived from the common law. However, just because a statute uses a common law term does not mean that the tribunal is endowed with common law power; rather it is still a matter of how the common law term in the statute should be interpreted. In that regard, the jurisprudence is clear that common law terms utilized in legislation are to be informed by and evolve with the meaning ascribed to them as the common law evolves. 35. Thus, the meaning of jurisdictional defect is not the meaning extant at the time that the term was inserted in the legislation, but rather is to be read in light of subsequent decisions, including Dunsmuir v. New Brunswick. 18 As such, properly interpreted, the meaning of jurisdictional defect in section 253.1(5) of the Act is narrow in scope and is limited to true questions of jurisdiction or vires. The result is that the power preserved by section 253.1(5) of the Act is the power for WCAT to reconsider its final decision solely for questions of true jurisdiction or vires. The meaning cannot extend beyond that to errors which are unreasonable or patently unreasonable. 36. While a tribunal may possess powers implied into its governing statute to enable it to function effectively, no such power of reconsideration is necessary here to enable WCAT to function effectively, and no such power is appropriate for the reasons which will be outlined below. 37. Below, we address two key questions and the various sub issues arising under each question: 1) Does a tribunal have any common law power to reconsider its own decisions; and 2) 18 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], ABOA, Vol. 1, Tab 17, RBOA, Tab 8.

16 10 What statutory powers are granted to WCAT to reconsider its own decisions for patent unreasonableness? Does a tribunal have any common law power (or inherent power) to reopen or reconsider its own final decisions for patently unreasonable errors? 38. A key misconception in WCAT s argument is that administrative tribunals have common law power to review their own final decisions in order to cure unreasonable or patently unreasonable errors. This misconception informs WCAT s entire argument, and that of many of the interveners. 39. The suggestion that administrative tribunals have any common law or inherent power is misconceived. Administrative tribunals do not possess any inherent power or authority flowing from common law. 19 Administrative Tribunals are inferior tribunals. Under our Constitution, inherent powers are reserved exclusively for the superior courts. The source of authority for any administrative tribunal is derived solely from its enabling statute either expressly or by implication, and each administrative tribunal must act solely within the powers delegated to it by its enabling statute. 40. Macaulay and Sprague speak about the common misconception that administrative tribunals possess a common law authority in Practice and Procedure Before Administrative Tribunals: One sometimes hears references to common law authority of agencies as if agencies possessed some inherent authority flowing from the common law. This is technically incorrect. The common law today is judgemade law; that is law which is based on judicial interpretations found in the case law. A judge has no authority to grant agencies powers. Common law powers of agencies are really simply powers which are implied by, or included in, express legislative grants of power. For example, a judge may be called upon to decide what powers the Legislature meant to give an agency when it authorized the agency to hold hearings. The judge will likely decide that a grant of power to hold a hearing includes the authority to grant an 19 Robert W. Macaulay, Q.C. & James L.H. Sprague, Practice and Procedure Before Administrative Tribunals, looseleaf, vol. 1 & 3 (Toronto, ON: Thomson Canada Limited, 2004) at and [Sprague], RBOA, Tab 18.

17 11 adjournment. This can be considered a common law power insofar as it is established through judicial interpretation but it is an interpretation of the extent of a legislative grant of power. Technically the power in question flows implicitly from the Legislature in its broad grant of power to hold a hearing. The same reasoning applies to authority possessed by agencies as corporate or persons. Their authority still flows in essence from the Legislature s grant of that status to them. The grant of status is a short-form tool to grant the implied powers. 20 [emphasis added] 41. The terms common law powers or common law authority are used to refer to powers of administrative tribunals which must be implied by, or included in, the express legislative grants of power meant to enable the administrative tribunal to carry out its statutory mandate. The key is that these powers must flow from the wording and mandate of the statutory provision they are not inherent or derived from the common law. 21 As stated by Sprague in Practice and Procedure before Administrative Tribunals: As has been frequently stated, an administrative agency has no inherent powers. It possesses only the powers given to it by Parliament or a legislature. These powers can be given to it expressly in its enabling statute, another statute which grants the agency some mandate or authority, a statute of general application (such as Ontario s Statutory Powers Procedure Act(, or by regulation (if such regulations are authorized themselves by statute). Powers can also be given to an agency by implication. The powers conferred by legislation include not only such powers that are expressly grated, but also all of those powers which are reasonably necessary for the accomplishment of the mandate which that legislation imposes upon the agency. In other words, when Parliament or a legislature imposes a mandate upon an agency, included implicitly in the imposition of the mandate, are all of the powers that the agency will need in order to accomplish that mandate. 22 [emphasis added] 42. WCAT does not possess any inherent powers. The only powers it can possess are those granted to it by statute. 20 Sprague, supra, RBOA, Tab Sprague, supra, RBOA, Tab Sprague, supra, RBOA, Tab 18.

18 The fact that administrative tribunals are bound by their enabling statutes is not a novel concept. In Canadian Broadcasting Corp. v. Quebec (Police Commission), Justice Beetz speaking for the Court stated: 2. Unlike certain courts of law, the Police Commission has no inherent powers: it has only those powers which are conferred on it by statute. I do not think there is any need to undertake a demonstration of this proposition, which seems neither disputed nor open to dispute. If there were any doubt on the point, it could be resolved merely by reading the observations of Pigeon J., speaking for the majority of this Court, in A.G. of Que. and Keable v. A.G. of Can. [[1979] 1 S.C.R. 218], especially at pp. 249 and 250: Because a commissioner has only limited authority he enjoys no inherent jurisdiction, unlike superior courts which have such jurisdiction in all matters of federal or provincial law unless specifically excluded. It is by virtue of this inherent jurisdiction that superior courts have a general superintending power over federal as well as provincial authorities, as held in Three Rivers Boatman, [1969] S.C.R [emphasis added] 44. In Dunsmuir, this Court went further and found that a fundamental principle enshrined in the rule of law is that tribunals are confined to the powers granted to them by their statute. At paragraph 29, Justices Bastarache and LeBel state: [29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, [page212] the decision maker transgresses the principle of the rule of law 24 [emphasis added] 45. WCAT argues at paragraphs 8 and 110 of its Factum that as this Court s decision in Chandler spoke of applying a flexible approach to the functus officio doctrine for tribunals, then even absent an express statutory provision, a tribunal has the power to reopen its final 23 Canadian Broadcasting Corp. v. Quebec (Police Commission), [1979] 2 S.C.R. 618, [1979] 2 S.C.J. No. 60, RBOA, Tab 3, p Dunsmuir, supra, ABOA, Vol. 1, Tab 17.

19 13 decision to cure patently unreasonable decisions. 25 In effect, WCAT argues that applying a flexible approach to the functus officio principle, empowers tribunals with inherent power to reopen final decisions. The doctrine of functus officio cannot endow an inferior tribunal with inherent powers. Further, this is a misreading of Chandler. There is nothing in Chandler which suggests that tribunals have a common law power, or any inherent power to reconsider their own final decisions. Indeed, no court could by judge made law confer any powers on a tribunal. Tribunals are solely creatures of statute. 46. The issue before the court in Chandler was whether or not the Practice Review Board of the Alberta Association of Architects was functus officio after delivering a report on practices leading to the bankruptcy of the Chandler Kennedy Architectural Group. 47. In that case, the Practice Review Board made findings of unprofessional conduct against a firm and several of its partners. The trial judge quashed the findings on the basis that the board breached the rules of natural justice by failing to inform the partners that they were facing charges or allegations. 48. The Alberta Court of Appeal upheld the trial judge s decision to quash the board s decision, but for different reasons namely that the board lacked jurisdiction to make the finding or orders it did. Thus, as a result, the board s orders were a nullity. A month after the Court of Appeal decision, the board gave notice to the appellants that it intended to continue the hearing. This raised the issue of whether the board was functus officio. 49. Justice Sopinka commenced the analysis to answer that question by querying at paragraph 9 whether the board had made a final decision. Recognizing that the board s decision was found to be a nullity, he queried at paragraph 18 of the decision: In these circumstances, is the decision of the Board final so as to attract the principle of functus officio? In the end, Justice Sopinka determined that the doctrine of functus officio should be applied flexibly in the context of tribunals; however, in arriving at this conclusion, he relied on two 25 FAP, p. 2, para. 8; p. 30, para Chandler, supra, ABOA, Vol. 1, Tab 11, pp. 855 and 860.

20 14 key cases, the first of which was Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, where it was found that the strict doctrine of functus officio did not apply to the Immigration Appeal Board. Importantly, in that case, the language of the statute contained an intention to enable the board to hear further evidence in certain circumstances although a final decision had been made The second case was Re Trizec Equities Ltd. and Area Assessor Burnaby New Westminster, (1983), 147 D.L.R. (3d) 637 (B.C.S.C.), where McLachlin, J. (as she then was) found that a tribunal had made a decision which was a nullity and accordingly could continue with a proper hearing and render a valid decision Justice Sopinka also noted at paragraph 25 of Chandler that an error by a tribunal which taints the whole proceeding (such as through a breach of natural justice), entitles the tribunal to start afresh and reconsider its decision. 53. It is against the backdrop of the above principles that Justice Sopinka made the findings which he did in Chandler. 54. This Court emphasized the importance of the principle of finality and found that, where a tribunal has fulfilled its mandate (i.e., made its final decision), it is functus officio. Sopinka, J. stated the following starting at paragraph 20: I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error 27 Chandler, supra, ABOA, Vol. 1, Tab 11, p Chandler, supra, ABOA, Vol. 1, Tab 11, p. 863.

21 15 within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra. 29 [emphasis added] 55. After acknowledging the importance of finality, Justice Sopinka went on to express the view that the doctrine of functus officio should be applied flexibly concerning decisions of administrative tribunals and this flexibility could entitle tribunals to reopen administrative proceedings in certain circumstances: To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal The concern in Chandler which gave rise to the desire of flexibility in applying the functus officio doctrine was expressly in the context of administrative decisions which are subject to appeal only on a point of law. WCAT s decision is not appealable on a point of law and therefore, the policy concern in Chandler has no application here. 57. However, and importantly, Justice Sopinka emphasized that this flexible approach must be rooted in the enabling statute of a tribunal. In other words, a tribunal does not have any powers other than those granted by its enabling statute: [22] Accordingly, the principle [of functus officio] should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra. [23] Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the 29 Chandler, supra, ABOA, Vol. 1, Tab 11, p Chandler, supra, ABOA, Vol. 1, Tab 11, p. 862.

22 16 fact that one is selected does not entitle it to reopen proceedings to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute. See Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214 (F.C.A.). 31 [emphasis added] 58. While Justice Sopinka in Chandler noted that the doctrine of functus officio may be applied with greater flexibility in the context of administrative tribunals, he also stressed that the greater flexibility was to be applied only so far as is necessary to allow the tribunal to complete its mandate, which is to make the decision entrusted to it. WCAT completed its mandate when it made its Original Decision. As cited above, Justice Sopinka expressly stated that: As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. 32 [emphasis added] A patently unreasonable or unreasonable error is an error within jurisdiction, and cannot be revisited. The issue of whether a patently unreasonable error is an error of jurisdiction or an error within jurisdiction will be addressed in more detail below. 59. While it is correct in law to say that Chandler supports the proposition that the doctrine of functus officio must be applied flexibly in the context of administrative proceedings, it goes no further than that. This principle extends to permitting a tribunal to reopen a matter to fulfill obligations implicit in or necessary to the express statutory mandate. It does not confer any common law power or authority to reopen a proceeding for a review of reasonableness or patently unreasonableness. 60. WCAT notes that Chandler contemplates that a tribunal can reopen a decision if there has been a breach of natural justice. It then argues that, by extension, it should be permitted to reopen a decision for reasonableness or patently unreasonableness. In essence, WCAT 31 Chandler, supra, ABOA, Vol. 1, Tab 11, p Chandler, supra, ABOA, Vol. 1, Tab 11, p. 861.

23 17 equates a breach of natural justice with an unreasonable or patently unreasonable decision. Dunsmuir treats natural justice as different in character than an unreasonable decision Moreover, as pointed out in Chandler, a breach of natural justice entitles the tribunal to reopen a decision because the entire hearing is tainted. A breach of natural justice which denies a litigant a fair hearing is very different in character than an unreasonable decision. A breach of natural justice cannot be equated with an unreasonable decision While flexibility in the application of the functus officio is desirable when dealing with administrative tribunals, that flexibility is not limitless. The doctrine cannot be applied so flexibly that it overrides the principle of finality. The system proposed by WCAT would put an end to finality. 63. The concept of flexibility as discussed in Chandler must be interpreted in the context of the entire administrative law system and the differing roles between administrative tribunals and courts. Finality is a necessary element of the system in order to maintain the important role of oversight that the courts play in administrative law. Other jurisdictions consideration of tribunal s common law power to reconsider their own final decisions 64. The view of Canadian courts that tribunals have no inherent power is also consistent with common law jurisprudence in England. 65. In England, it has been recognized that absent statutory power, tribunals have no commonlaw right to reconsider their own decisions. It was noted by H.W.R. Wade and C.R. Forsyth in their text Administrative Law 35, that once a tribunal has announced its decision, it has, as a general rule, no power to reconsider it or to reopen the case. On November 2008, the legislature in England enacted Tribunals, Courts and Enforcement Act This 33 Dunsmuir, supra, RBOA, Tab 8, paras. 77 and Section 58(2)(b) of the ATA also treats Natural Justice as different in character than a decision which is patently unreasonable. 35 H.W.R. Wade & C.R. Forsyth, Administrative Law, 10th Edition (Oxford: Oxford University Press, 2009), at , RBOA, Tab Tribunals, Courts and Enforcement Act 2007, 2007 c. 15, ss (UK), RBOA, Tab 22.

24 18 legislation introduced a general power of internal review for tribunals but set out specific criteria, timeframes, and procedures for such internal review. In other words, the ability of tribunals to review their own decisions was clearly set out by statute which provided guidelines and procedures. History of Administrative Tribunals 66. The proliferation of administrative tribunals in Canada has been a relatively recent development. Prior to the twentieth century, it was part of the conception of the rule of law that the determination of questions of law that is to say, questions which require findings of fact and the application of definite legal rule or principles belonged to the courts, exclusively. Tribunals were created as independent bodies as an alternative to the judicial process. As noted by Justice Abella while seated on the Ontario Court of Appeal in Rasanen v. Rosemount Instruments Ltd.: This is an argument, in my opinion, which seriously misperceives the role and function of administrative tribunals. They were expressly created as independent bodies for the purpose of being an alternative to the judicial process, including its procedural panoplies. Designed to be less cumbersome, less expensive, less formal and less delayed, these impartial decision-making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly 37 [emphasis added] 67. Although administrative tribunals are useful alternatives to courts in the modern world, the existence of such independent bodies requires oversight such that the rule of law is maintained and confidence in the judicial system upheld. It is the courts regulation and oversight of administrative tribunals which ensures that they operate within the rule of law. In order for the system to function, finality of administrative decisions is required. Without finality of decisions from administrative tribunals, courts cannot properly perform their oversight function and maintain the rule of law among tribunals. The courts role in overseeing administrative tribunals (through judicial review) is vital to the maintenance of the rule of law and to the integrity of the judicial system. It is so important that it is constitutionally enshrined in section 96 of Constitution Act. 37 Rasanen v. Rosemount Instruments Ltd. (1994), 112 D.L.R. (4th) 683, 17 O.R. (3d) 267 (C.A.), RBOA, Tab 13, para. 35

25 There have been a number of cases and commentaries emphasizing the importance that judicial review plays in maintaining the rule of law over tribunal decision-making. 69. In Dunsmuir, the Court spoke about the important role of section 96 of the Constitution Act in relation to the limitations on the allocation of decision-making powers and maintenance of the rule of law. Justices Bastarache and LeBel held the following at paragraph 27: [27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. 38 [emphasis added] 70. Dunsmuir recognized that, while courts ought not to unduly interfere with administrative functions, the rule of law requires that administrative tribunals only act within the confines of their enabling legislation: 28 By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. 29 Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, [page212] the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was 38 Dunsmuir, supra, ABOA, Vol. 1, Tab 17, para. 27.

26 20 intended to be given to the body in relation to the subject matter. This is done within the context of the courts' constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para [emphasis added] 71. Dunsmuir also recognized that, separate and apart from the rule of law, judicial review also performs an important constitutional function, namely the maintenance of legislative supremacy: 30 In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy. As noted by Justice Thomas Cromwell, "the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal's authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law" ("Appellate Review: Policy and Pragmatism", in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V- 12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent. 40 [emphasis added] 72. The fundamental importance of the inherent power of superior courts to review administrative decisions and the constitutional protection for such inherent power was also recognized in Dunsmuir: 31 The legislative branch of government cannot remove the judiciary's power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, at p. 127 [page213]). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in 39 Dunsmuir, supra, ABOA, Vol. 1, Tab 17, paras Dunsmuir, supra, ABOA, Vol. 1, Tab 17, para. 30.

27 21 ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090, "[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection". In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits 41 [emphasis added] 73. The fact that overview by courts of administrative decision-making is a necessary underpinning of the rule of law and that administrative tribunals should be limited to the role delegated to them by their legislation was discussed by Chief Justice McLachlin in Administrative Tribunals and the Courts: An Evolutionary Relationship where she stated: In sum, without administrative tribunals, the rule of law in the modern regulatory state would falter and fail. Tribunals offer flexible, swift and relevant justice. In an age when access to justice is increasingly lacking, they help to fill the gap. And there is no going back. Yet the rise of administrative tribunals posed a problem. How could we have all the benefits of tribunal justice, and still maintain the rule of law? How, it was asked, could the public be sure that government-appointed tribunal members would hold fair hearings and stay within the ambit of their administrative powers? Would the gains made in the long fight for rights and fair adjudication before the courts be lost when appointed board members accountable to no one but the government they hoped would reappoint them decided the rights and wrongs of peoples disputes with each other and the state? If these fears have not been realized, if tribunals work within the rule of law and not outside it, it is because the courts took on the task of ensuring that administrative tribunals remain true to their fundamental mandates, both procedurally and substantively. In a word, it is because of judicial review. Judges have intervened to ensure that administrative tribunals administered justice in conformity to the fundamental tenants of the rule of law. English constitutional lawyer and professor Alberta Venn Dicey led the way, pronouncing that the rule of law means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even of wide discretionary authority on the part of the government. 41 Dunsmuir, supra, ABOA, Vol. 1, Tab 17, para. 31; see also concurring Judgment of Binnie, J., RBOA, Tab 8, paras