Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Practice and procedure – Judicial review application – Standing in judicial review – Workers Compensation – Worker – definition
Buttar v. British Columbia (Workers’ Compensation Appeal Tribunal),  B.C.J. No. 548, British Columbia Supreme Court, January 13, 2009, K.M. Ker J.
The Petitioner, Mr. Buttar, was driving his taxicab when he hit the Respondent, Mr. Galeto. The Respondent was working at a hotel and was leaving the hotel for his lunch break when he was hit. The Respondent was injured and started a tort action and the Petitioners plead that the action was barred because the Respondent was working at the time he was injured. The Respondent then applied to the Worker’s Compensation Appeal Tribunal (WCAT) for a determination about his status at the time of the accident.
The WCAT Application was made on February 19, 2007. The WCAT decision found that the Respondent’s injuries did not arise out of his employment and, therefore, the civil action for damages was not barred.
The Petitioners sought judicial review of the WCAT decision alleging four areas where the Vice-Chair’s decision was unreasonable:
1. He reversed the onus of proof and applied the wrong standard to the evidence in respect of the determination that the Respondent was on his employer’s premises at the time of the accident;
2. Failing to apply a relevant policy in that he declined to find the Respondent was in the course of his employment when entering and leaving the premises for lunch break;
3. Failing to apply a relevant policy in that he declined to consider the Respondent to be in the course of his employment when he was in a breezeway akin to an employer’s parking lot; and
4. By characterizing the breezeway as something other than the employer’s premises.
The Petitioners objected to the WCAT being granted standing in this judicial review application or, in the alternative, that the WCAT’s standing should be limited to addressing jurisdiction and standard of review.
The Court held the WCAT did have standing and the only issue was the scope of the standing. The degree of participation in the proceeding has previously been determined in part in reference to the nature of the proceedings. This Petition is a true adversarial proceeding and, as such, this indicated a lesser degree of participation in the proceedings. However, the WCAT had special knowledge and expertise and this indicated a greater degree of participation for the WCAT.
It is up to the reviewing judge in each case to determine whether the tribunal has crossed the line from explaining the record to arguing the merits of the decision. In CAIMAW v. Paccar of Canada Ltd.,  2 S.C.R. 983, the phrase “arguing the merits” was interpreted to mean that a tribunal could assist the court in determining the reasonableness of the tribunal’s decision but could not appear to defend the correctness of its decision.
The Court held that the WCAT was not limited to addressing the issue of jurisdiction and the scope or standard of review. The Court reviewed the argument entered by the WCAT. The Court found that, for each of the issues raised in the Petition, the WCAT submissions stated the position of the Petitioners, set out the relevant portion of the decision, and reviewed the record on the issue. The submissions also commented on the applicable standard of review for each of the issues. The Court concluded that the WCAT was entitled to make the submissions it made and the submissions did not cross the line into arguing the correctness of the decision (on any of the issues).
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 firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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