Administrative law – Workers compensation – Loss of earnings pension – Judicial review – Evidence – Jurisdiction – Remedies – Certiorari
Jones v. British Columbia (Workers’ Compensation Board),  B.C.J. No. 2556, British Columbia Court of Appeal, November 7, 2003, Esson, Donald and Smith JJ.A.
Jones initially sought compensation for a work-related injury to his lower back sustained in 1981 when he was working at a sawmill. Six years later Jones underwent an L5-S1 laminectomy and discectomy to address his lower back pain. The Board awarded Jones a 12.5% permanent partial disability pension. Jones challenged the 12.5% disability determination as being inconsistent with the finding that he was capable of returning to his former employment.
The main issue before the Court of Appeal involved a loss of earnings pension assessed at $3,069.56 per month. Although the Review Board initially denied the loss of earnings pension, Jones appealed the initial denial to the Review Board where it was held that he should be reassessed. A Functional Evaluation Unit Report found that sawmill jobs were beyond his capacity. In 1993, the Board issued a decision letter declaring that Jones was entitled to loss of earnings pension based on the difference between his pre-injury earnings and the wage equivalent of working half-time as a furniture refinisher. Prior to the issuance of the decision letter, Jones was examined by a registered psychologist who expressed the opinion that he had a manipulative personality, independent of his compensable injury, which manifested itself in his attempts to consciously exaggerate disability.
Jones appealed the limited entitlement granted to him by the decision letter to the Review Board. At this point, his employer, Weyerhauser, exercised its right to intervene and persuaded the Review Board it was wrong in entitling Jones to a loss of earning pension. In 1994, the Review Board took away Jones’ pension.
That decision of the Review Board was later reversed on appeal. Weyerhauser challenged the appeal decision by producing to the Board a doctor’s opinion that the Appeal Division’s decision was based on a bona fide medical dispute which should be referred to the Medical Review Panel. The orthopedic panel commented that the nature and extent of Jones’ back impairment was self-reported severe low back pain but that his pain behaviour and a lack of objective physical findings accorded well with the earlier report of the psychologist, who had implicated a manipulative personality in Jones’ alleged exaggeration of his injury. The orthopedic panel went on to say that there were no organic findings substantiating the lower back pain and that as a result, the panel believed the worker would be capable of returning to his employment as a sawmill worker.
Jones argued that the conclusion drawn by the panel, namely that he would be able to return to work, was essentially a trespass on the jurisdiction of the Board to decide questions of employability and should have been disregarded.
Jones later petitioned for judicial review of this MRB decision and of the 2001 Appeal Division decision which substantiated the MRB findings. The reviewing judge on judicial review held that Jones could not seek to quash the decision by way of judicial review, given that he had as an alternate remedy argued for a narrow reading of the MRB decision at the implementation stage. The reviewing judge went on to say that in relation to the 2001 Appeal Division decision, Jones could have sought a review of that decision by an MRB, just as the employer did, with a 1995 appeal decision. Since Jones had failed to do so, the reviewing judge held that he had failed to exhaust an internal remedy, and the reviewing judge thereby refused to exercise his discretion to entertain the petition.
The reviewing judge also went on to address the merits of the judicial review against the possibility that he was wrong in his exhaustion of remedies analysis. He examined the 2001 Appeal Division decision for any patently unreasonable error but did not deal with the challenge to the MRB decision.
Jones alleged that he did not receive a proper hearing on the judicial review. He contended that the chambers decision had misinterpreted the exhaustion of remedies principle in finding that the court could not quash the MRB certificate because the Appellant had an available alternative remedy. In fact, Jones had appealed the decision letter to the Review Board and so had already exhausted his alternative remedy. Jones also took issue with a number of allegedly incorrect conclusions made in the chambers decision.
The Court of Appeal approached Jones’ appeal by evaluating whether Jones raised reasonably arguable points in his petition rather than by deciding the judicial review itself. However, the Court held that Jones’ challenge to the decision to refer the medical dispute to the Medical Review Panel was doomed to fail. The court stated that Jones had ample opportunity to address this issue in a timely way and had not done so and accordingly, he could not expect a favourable exercise of discretion in undertaking a review of that decision.
The Court of Appeal considered the principle of exhaustion of remedies and stated that the chambers judge had erred in treating the internal processes as exhaustive to Jones’ rights, effectively putting him at the end of the road instead of seeing them as necessary steps preliminary to judicial review. The court referred to the case of Harelkin v. University of Regina,  2 S.C.R. 561 wherein a student appealing his failing marks was denied natural justice at an intermediate stage of the University of Saskatchewan’s internal review process. That student had an opportunity to appeal to the Senate of the University which would have cured the defect but went to court instead. It was decided that the Senate appeal was an adequate alternative remedy which he should have exhausted. The case did not say that an aggrieved party could not pursue judicial review after he had exhausted the internal remedies.
The court went on to say:
The primary rationale for the rule is that the need for judicial intervention may become unnecessary if the problems are cleared up internally with greater speed and efficiency and at less cost. But if they are not, neither reason nor authority supports the view that an aggrieved party is stuck with an unsatisfactory result after exhausting internal remedies and cannot ask the court to judicially review the decision.
The court made only a threshold evaluation of the points raised in the petition with respect to the merits of the chambers judge’s decision, choosing instead to leave those for a rehearing in the Supreme Court. However, the court noted that there was merit to the alternative point that the MRP was patently unreasonable in not reconciling the acceptance of Jones’ 12.5% functional disability with the opinion that he could, but for his malingering, return to jobs available at the mill. In the result, the court referred the petition to be reheard in the Supreme Court.
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