A worker in a pulp and paper mill (“Speckling”) who was allegedly injured while cleaning up a boiler house was unsuccessful in his appeal from two judicial reviews of decisions of the Workers’ Compensation Board Appeal Division which rejected his claims for compensation

Administrative law – Workers compensation – Benefits – Decisions of administrative tribunals – Workers Compensation Boards – Judicial review – Standard of review – Patent unreasonableness

Speckling v. British Columbia (Workers’ Compensation Board), [2005] B.C.J. No. 270, British Columbia Court of Appeal, February 16, 2005, Hall, Levine and Thackray JJ.A.

Speckling became ill while at work and about one month later was diagnosed with an L2‑3 disc herniation impinging on the L3 nerve. He did not return to work and filed a claim on the basis that he was not able to work due to a back complaint. A claims adjudicator denied the claim for compensation and Speckling then took advantage of every possible appeal internally at the Workers’ Compensation Board. This culminated in a decision of the Appeal Division in the year 2000, rejecting Speckling’s recollection of events as not credible.

A second Appeal Division decision was rendered in 2002 which also upheld the rejection of Speckling’s claim.

Speckling filed a Petition in Supreme Court seeking judicial review of the 2000 and the 2002 appeal decisions. Speckling argued that the two decisions were patently unreasonable and these two applications for judicial review were both dismissed by Mr. Justice Josephson.

Although the proceedings before Josephson J. were conducted under the patently unreasonable standard of review by agreement between the parties, the Court of Appeal reviewed the criteria from Dr. Q v. The College of Physicians and Surgeons of British Columbia, [2003] 1 SCR 226, and found that there was a strong privative clause in the Act, that the expertise of the Tribunal relative to that of the reviewing court was significant and that the purpose of Workers’ Compensation legislation indicates that the legislature intended to leave the resolution of these issues to the Workers’ Compensation Board. The Court reviewed the four fundamental principles of Workers’ Compensation as outlined by Sopinka J. in Pasiechnyk quoting Montgomery J. in Medwid v. Ontario (1988), 48 DLR (4th) 272 at 279:

(a)  compensation paid to injured workers without regard to fault;

(b)  injured workers should enjoy security of payment;

(c)  administration of the compensation schemes and adjudication of claims handled by an independent commission, and

(d)  compensation to injured workers provided quickly without court proceedings.

Finally, the Court reviewed the nature of the questions being considered and found that the question arising out of the 2000 appeal decision was whether Speckling was entitled to compensation. This question turned on whether his injury arose out of or in the course of his employment and thus was a pure question of fact.

The question arising out of the 2002 appeal decision was whether the 2000 appeal decision was a “medical decision”. The Court held that this involved the application of Board policy and legal principles to the facts but was a “fact-intensive” question of mixed law and fact. The Court held that the decisions were entitled to the highest level of deference and should be subject to the patently unreasonable standard of review.

The Court of Appeal concurred with the chambers applying the patently unreasonable standard of review, judge’s summary of the approach to be taken in.

Applying the principles of the patently unreasonable standard of review, the Court of Appeal found that there was ample evidence before the Appeal Division to support the decisions that it had made, including the finding on Speckling’s credibility.

The Court also considered Speckling’s argument that the 2000 Appeal decision contained a procedural error in that it “shifted the burden of proof with respect to credibility” when it asked Speckling if he could offer any motive for another witness offering untruthful evidence. The Court of Appeal stated:

[t]he chambers judge found that, while inappropriate in a criminal context, there was no basis to suggest the Appeal Division used that evidence in an improper fashion or wrongly shifted the burden of proof. Mr. Speckling has not offered any basis for this Court to disagree with the chambers judge that the possibly inappropriate question led to a patently unreasonable result when all of the evidence was taken into account.

The appeal was dismissed.

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