An employee of Weyerhauser (“Mr. Jones”) was successful in his appeal from a decision dismissing his application for judicial review of a decision denying his claim for a loss of earnings pension through the Workers’ Compensation Board

22. November 2005 0

Administrative law – Workers Compensation – Benefits – Decisions of administrative tribunals – Workers Compensation Boards – Judicial review – Jurisdiction – Standard of review of appellate court – Privative clauses – Delegated authority – Standard of review – Patent unreasonableness – Remedies – Mandamus – Certiorari

Jones v. British Columbia (Workers’ Compensation Board), [2005] B.C.J. No. 2005, British Columbia Court of Appeal, September 23, 2005, Saunders, Levine and Thackray JJ.A.

Mr. Jones was a sawyer employed by Weyerhauser at a sawmill. In 1981, he slipped and suffered a compensable injury to his lower back. He received a 12.5% permanent disability pension under the Workers Compensation Act, R.S.B.C. 1996, c. 492 (the “Act”) but no loss of earnings pension.

Mr. Jones sought to quash decisions denying him the loss of an earnings pension on the basis that the certificate provided by the Medical Review Panel (the “MRP”) was defective.

After considerable internal adjudication of Mr. Jones’s claim for a loss of earnings pension, Weyerhauser applied for referral to the MRP. The orthopaedic MRP was asked a series of questions about Mr. Jones’s condition and the nature and extent of his back impairment resulting from the compensable injury.

The MRP certificate issued stated that with rehabilitation and a muscle strengthening program, Mr. Jones would be capable of a graduated return to some form of gainful employment. In June of 1998, the Board implemented the MRP certificate and ended Mr. Jones’s loss of earnings pension. Mr. Jones appealed to the Review Board and argued that the MRP had exceeded its jurisdiction by deciding the question of his employability, a matter that he argued was within the Board’s mandate rather than that of the MRP. The Review Board agreed with Mr. Jones. Weyerhauser appealed that decision to the Appeal Division. The Appeal Division found that Mr. Jones was not entitled to a loss of earnings pension. Mr. Jones then applied for judicial review. His petition was dismissed and then remitted out of the Court of Appeal to the Supreme Court of British Columbia for re-hearing. The learned reviewing judge dismissed this petition as well, which led to another appeal to the British Columbia Court of Appeal.

The Court of Appeal held that a certificate of a medical review panel is binding upon the Appeal Division and is protected by a strong privative clause in section 65 of the Act. In addition, a decision of the Appeal Division is said to be conclusive under the Act.

Mr. Jones challenged the MRP certificate as being outside its jurisdiction because it expressed an opinion not permitted of it, while at the same time not answering the questions that were posed.

Saunders J.A. indicated that this case turned on a statutory delegate that had not performed its statutory duty. Given that the relief sought here was within the nature of mandamus, Saunders J.A. had concerns about the applicability of the analysis from Pushpanathan. Saunders J.A. wrote:

… Taken as a whole, however, the submission before us had a somewhat different focus, and brought into relief the real allegation concerning the certificate, that is, that it did not directly answer all the questions posed, in particular question 9, while at the same time it strayed into opinion on employability, an issue usually left to the Board, with its expertise, to determine. The aspect of not answering all the questions does not focus on error in the decision of the statutory delegate, but rather upon the performance of the MRP’s public duty, in which case mandamus as a residuary remedy is available.

The Pushpanathan analysis does not adapt easily to judicial review when the essential question is the absence of performance of a public duty, and I do not read Ryan which gave instruction to always engage in that analysis, as addressing those prerogative writs used less frequently than certiorari, in which it is the action or lack thereof, and not the content of a decision, that is challenged.

It may be possible to adapt that Pushpanathan structure by saying that a decision that does not demonstrate performance of the statutory delegate’s public duty is patently unreasonable, or even to approach the question as one of jurisdictional error demonstrated by that non-performance of the public duty such as discussed by Bastarache J., supra. However, those approaches, in my view, unnecessarily cloud the view of the real issue and hide the question that must be answered, which is whether the statutory delegate, the MRP in the case at bar, fully performed its public duty. If not, in regard to the MRP, the question then becomes whether the court should exercise its discretion in favour of Mr. Jones.

Saunders J.A. held that the MRP, by moving directly to the issue of Mr. Jones’s pre-injury employment, had failed to set out his physical capabilities for employment. The certificate was deficient in that it did not answer the questions posed and addressed the question of employability instead. Saunders J.A. focused on the requirement that the MRP provide a plain answer that could easily be interpreted, even by the claimant who is “frequently a layperson not accustomed to reading between the lines of professional opinion”.

Saunders J.A. then applied the standard of review of patent unreasonableness to the decision of the Appeal Division which had been based on the MRP’s certificate. The Court held:

… That deficiency in the certificate related to the core of the issue before the Appeal Division of Mr. Jones’ entitlement to a wage loss pension. The decision of the Appeal Division denying him a pension is, in this way, built upon sand and, in my view for that reason, meets the term patently unreasonable.

Saunders J.A. set the certificate of the MRP aside and permitted the matter to be dealt with again through the machinery established under the Act.

Levine J.A. concurred with the conclusion reached by Saunders J.A., but disagreed with there being a distinction between the use of the pragmatic and functional approach for orders in the nature of certiorari as opposed to orders in the nature of mandamus. Levine J.A. stated at paras. 57 and 58:

Where I differ from Saunders J.A. is that in my opinion, the “pragmatic and functional approach” should be followed in determining whether the chambers judge applied the proper standard of review to the decisions of the MRP and the Appeal Division, and if he did not, in assessing those decisions on the correct standard of review: see Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 at para. 43. Madam Justice Saunders’ analysis of the cases in which the pragmatic and functional approach has been applied provides for a way to distinguish them: the review undertaken was more in the nature of certiorari, where the content of the decision was challenged, while this case may be more like the old prerogative writ of mandamus, where the allegation is that the administrative body failed to fully carry out is statutory duty.

The Supreme Court of Canada has stated unequivocally that the pragmatic and functional approach should be applied “whenever a court reviews the decision of an administrative body”: see Dr. Q at para. 25; Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23 at para. 15. Apart from the fact that the Supreme Court’s directions are binding on this Court, in my opinion the pragmatic and functional approach has utility in answering the fundamental question a court confronts on judicial review; what did the legislature intend the court’s role to be in reviewing the decision of the tribunal in question on the particular issue before it? See Pasiechnyk v. Saskatchewan (Workers’ Compensation Board) [1997] 2 S.C.R. 890 at para 18: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 26. That question reflects the traditional tension between the legislature’s authority to grant decision-making powers to administrative bodies and the constitutional role of the superior courts in protecting the rule of law: see Dr. Q at para. 21. These fundamental questions arise in every application for judicial review, whether they would historically have been categorized as in the nature of certiorari or mandamus, or whether the issue would have been described as “jurisdictional” or otherwise: see Pushpanathan at para. 28 (quoted by Saunders J.A. at para. 33). Although the pragmatic and functional approach is often difficult to apply and because of the Supreme Court’s strong directions is perhaps in danger of being used as a mechanical mantra and not as the “more nuanced analysis” called for by McLachlin C.J.C. in Dr. Q at para. 25, I find that it does provide a useful framework for considering how the court should approach its role in a particular application for judicial review.

Levine J.A. held that the role of an appellate court reviewing the decision of a Supreme Court justice on an application for judicial review would be to determine on a standard or correctness whether the reviewing judge applied the right standard of review. Levine J.A. was of the view that the correctness standard applied to the decision of the MRP was in error. Rather, the MRP’s decision was entitled to a high level of deference. Levine J.A. accordingly applied the standard of reasonableness and concluded that the MRP did not properly carry out its duty as set out in the Act because it did not answer the questions put to it. In that respect, the MRP’s decision was unreasonable. Saunders J.A. shared the view that the decision of the Appeal Division that the MRP had properly carried out its duty was patently unreasonable.

Thackray J.A. gave dissenting reasons.

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