The Court of Appeal allowed an Appeal of a decision of the B.C. Supreme Court, which had found that a decision of the Workers’ Compensation Appeal Tribunal, that the Appellant was injured in the course of his employment, was patently unreasonable. In making its finding, the Court of Appeal found that the B.C. Legislature had not, by enacting sections 58 and 59 of the Administrative Tribunal’s Act, stepped outside its legislative competence and infringed on a constitutional guarantee of judicial review for the superior courts. Moreover, the effect of the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick was not to change the meaning of patently unreasonable. The application judge, while referring to the correct approach to factual issues, impermissibly weighed the evidence and moved outside the definition of patently unreasonable.

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Worker – definition – Legislation – Constitutional issues – Ultra vires – Judicial review – Jurisdiction of court – Standard of review – Patent unreasonableness – Evidence

Manz v. British Columbia (Workers’ Compensation Appeal Tribunal), [2009] B.C.J. No. 464, British Columbia Court of Appeal, February 27, 2009, C.M. Huddart, M.E. Saunders and P.A. Kirkpatrick JJ.A.

The Respondent, Manz, and the Appellant, Sundher, were involved in a motor vehicle accident. Manz was riding his motorcycle on his way home from work, while still on his employer’s property. Sundher, not employed by the same employer, was driving his truck and struck Manz. Manz commenced an action for damages.

Sundher obtained a certification under section 257 of the Workers’ Compensation Act, R.S.B.C. 1996, c. 42, that Mr. Manz was a worker whose injury arose out of, and in the course of, his employment. By that decision, and another decision of the tribunal declining to interfere with the first decision, Mr. Manz was held to be a person covered by the Workers’ Compensation scheme in British Columbia. The consequence of the determination under section 10 of the Act, because Mr. Sundher too was a worker within the meaning of the Act, was that Mr. Manz was not able to maintain an action in court for damages, but instead must rely upon the benefits to which he was entitled under the Act.

Mr. Manz brought an application for judicial review to set aside the certification. On the application, the B.C. Supreme Court set aside the decisions, on the basis that the tribunal’s decisions were patently unreasonable.

After the B.C. Supreme Court’s reasons for judgment were issued, the Supreme Court of Canada issued reasons for judgment in Dunsmuir v. New Brunswick, 2008 SCC 9, which changed the range of standard of review on a judicial review application from the three standards of correctness, reasonableness, and patent unreasonableness, to two standards, correctness and reasonableness. Prior to Dunsmuir, the B.C. Legislature enacted the Administrative Tribunals Act, S.B.C. 2004, c. 45, the terms of which incorporated the correctness, reasonableness and patent unreasonableness standards of review, depending on the nature of the question and the presence or absence of a privative clause. As a result of Dunsmuir, the common law of judicial review no longer invokes the standards of patently unreasonable while British Columbia, through the Administrative Tribunals Act, embraces the standard for certain tribunals and certain issues.

This divergence from the common law prompted Mr. Manz to advance a constitutional question challenging the constitutional validity of section 58(2)(a) and 59(3) of the Administrative Tribunals Act, on the basis that those sub-sections, in setting a standard of review of patent unreasonableness, are ultra vires the province as encroaching on the inherent jurisdiction of superior court justices appointed pursuant to s. 96 of the Constitution Act, 1867.

The Court of Appeal held that the B.C. Legislature had not, by enacting sections 58 and 59 of the Administrative Tribunals Act, stepped outside its legislative competence. The Court disagreed with the submission that judicial review is properly characterized as part of inherent jurisdiction of superior courts. Rather, modern judicial review is a restatement of the law of prerogative writs whereby the Sovereign called on the tribunal to ensure compliance with its mandate, using the Court as the medium.

Judicial review does hold a constitutionally protected place in the jurisdiction of superior courts: Crevier v. The Queen, [1981] 2 S.C.R. 220. The constitutionally protected role of the superior courts is supervision of the administrative tribunal’s conformity with the jurisdiction assigned to it by the enabling legislation. This is, as said in Dunsmuir, a duty “to ensure public authorities do not overreach their lawful powers”. Nothing in sections 58 or 59 of the Administrative Tribunals Act detract from that constitutional role held by the superior court, the Supreme Court of British Columbia.

The common law of standard of review had been developed as an interpretive guide for use in determining the legislature’s intent as to the jurisdiction accorded by it to the tribunal. There is no constitutional imperative to the method employed by the courts in the supervision of administrative tribunals, so long as the core requirement of ensuring the tribunal keeps to its mandate is preserved. The Administrative Tribunals Act does not generally derogate from the constitutional demand described by the Supreme Court of Canada in Crevier. In summary, the impugned provisions of the Administrative Tribunals Act do not remove a section 96 court function, there was no impairment of the key, constitutional, superintending role of the courts over administrative tribunals to which the Act applies, and no basis for constitutional complaint as to the standard that the statute directs a court to consider upon a judicial review application.

The Court next considered whether the effect of Dunsmuir was to amend the meaning of patent unreasonableness, such that a definition more akin to the reasonableness standard should be adopted. The Court concluded that the effect of Dunsmuir was not to change the meaning of patently unreasonable. The standard mandated by the Act is that which existed at common law prior to the issuance of the decision in Dunsmuir.

Finally, the Court considered the reviewing judge’s finding that the decision of the Tribunal was patently unreasonable. The Administrative Tribunals Act does not define that term. A decision is not patently unreasonable because the evidence is insufficient and it is not for the court on judicial review to second guess the conclusions drawn from the evidence considered by the Tribunal and substitute different findings of fact or inferences drawn from those facts. A court on review or appeal cannot re-weigh the evidence. Only if there is no evidence to support the findings, or the decision is “openly, clearly, evidently unreasonable”, can it be said to be patently unreasonable.

Applying that standard to the decision under review, the Court held that the reviewing judge, while referring to the correct approach to factual issues, impermissibly weighed the evidence and moved outside the definition of patently unreasonable. The reviewing judge found that certain evidence before the Tribunal was capable of more than one interpretation, yet he opted for an alternate determination. The Reasons for Judgment demonstrated a weighing of evidence, which was an exercise beyond the purview of a reviewing judge performing on a standard of patently unreasonable. The Court of Appeal found that there was some evidence upon which the ultimate finding of fact could be made and, in the circumstances, the decision cannot be said to be patently unreasonable.

In the result, the Appeal was allowed, the Order of the reviewing judge set aside, and the decisions of the Workers’ Compensation Appeal Tribunal re-instated.

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