The Petitioner, Asquini, brought a judicial review application in respect of the decision made by the Workers’ Compensation Appeal Tribunal (WCAT). The WCAT had denied the Petitioner’s appeal of the Workers’ Compensation Board (WCB) decision to deny him a loss of earnings pension. The Petitioner argued that the WCAT decision should be quashed for several reasons, including an argument that the vice chair in the WCAT was biased and there were errors in interpreting WCB policies. The Petition was dismissed.

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Benefits – Pensions – Eligibility – Legislation – Constitutional issues – Ultra vires – Judicial review – Compliance with legislation – Bias Standard of review – Patent unreasonableness

Asquini v. British Columbia (Workers’ Compensation Appeal Tribunal), [2009] B.C.J. No. 89, British Columbia Supreme Court, January 23, 2009, R.M.L. Blair J.

The Petitioner (“Asquini”) was injured at work in 1990 when he slipped on a pipe. He applied to the Workers’ Compensation Board (“WCB”) for benefits claiming that he was permanently and totally disabled. The WCB denied his claim for benefits on the basis that his disability was part of a degenerative condition. Four years later, the WCB appeal division concluded that the workplace injury accelerated his condition and that he had been temporarily totally disabled for approximately one year. The appeal division, therefore, found Asquini was entitled to certain benefits.

Approximately two years after the appeal division’s decision, Asquini was awarded a permanent partial disability pension assessed at one percent disability. Asquini’s claim for a loss of earnings pension was denied because he was not prevented from performing most of his work activities.

Asquini pursued various other appeals and reviews, which culminated in a review of his file by a panel of three doctors. This eventually led to a functional impairment assessment that Asquini disagreed with and appealed the WCB’s decision about his impairment. The appeal was heard by vice chair Brinley who gave reasons in August 2002.

Asquini continued to appeal and seek reviews of decisions and review decisions in order to increase his award and seek a loss of earnings pension. In August 2004, Asquini appeared at an oral hearing in front of vice chair MacArthur (“MacArthur”) but MacArthur upheld the previous decisions (the “Original Decision”). Asquini applied for a reconsideration of the Original Decision but vice chair Morton (“Morton”) upheld the Original Decision (the “Reconsideration”).

Asquini sought judicial review of both the Original Decision and the Reconsideration on several grounds. Asquini also raised a Constitutional question about sections 58 and 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “Act”). These are the sections that legislate the standard of review for certain tribunals in British Columbia. Asquini argued that these sections are ultra vires on the basis that they and insulate certain tribunals from judicial review and the Constitution gives the superior courts the jurisdiction to determine the standard of review.

The Court held, in respect of sections 58 and 59 of the Act, that the legislature codified the common law when it enacted those sections. This was done in an attempt to assist judges with applications for judicial review in respect of administrative tribunals. The decision in Dunsmuir did not “violate any constitutional limitation on the jurisdiction that British Columbia can confer on administrative tribunals”.

The Court also held that it was not open to it to apply common law rules expressed in Dunsmuir to B.C. tribunal decisions that are subject to sections 58 and 59 of the Act. Specifically, it was not open to the court to interpret “patent unreasonableness” in the Act to mean “reasonableness” in light of Dunsmuir.

The Court then briefly examined the nature of the alleged errors before deciding that Asquini had not adequately established any of the errors alleged in the Original Decision nor the Reconsideration.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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