Administrative law – Decisions of administrative tribunals – Employment and Assistance Appeal Tribunal – Employment law – Benefits – Judicial review – Failure to provide reasons – Evidence – Procedural requirements and fairness – Privative clauses – Standard of review – Correctness – Patent unreasonableness
Hudson v. British Columbia (Employment and Assistance Appeal Tribunal),  B.C.J. No. 2124, British Columbia Supreme Court, October 28, 2009, G. Dickson J.
Hudson is a 47-year-old woman who suffers from degenerative disc disease, a fractured foot, arthritis, and epilepsy. She applied for disability benefits under the Act, which required her to be designated a PWD.
Hudson had appropriately completed the application for a PWD designation. Her physician specified that she was restricted in performing activities of daily living including meal preparation, basic housework, daily shopping and mobility outside the home, on a periodic basis. Her nurse assessor identified that she had limited walking distance due to pain and weakness due to degenerative disc disease, and problems with fine motor movements due to symptoms in her hands and feet.
On November 26, 2008, the Ministry of Housing and Social Development denied her application. Hudson requested a reconsideration, which was also denied on December 10, 2008. Hudson appealed to the Tribunal and a teleconference hearing was held January 15, 2009. The Tribunal issued Reasons that were signed on January 15, 2009 but were not issued until January 22, 2009.
There is a privative clause applying to the Tribunal set out in the Employment and Assistance Act, S.B.C. 2002, c. 40 (“EAA”). The presence of the privative clause engages section 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45, with respect to standard of review. In addition, there are statutory requirements for the Tribunal to provide written Reasons for its decision, both at section 24(3) of the EAA and in the Employment and Assistance Regulation, B.C. Reg. 263/2002 (“EAR”). The EAR requires that the written determination of the Tribunal must specify the decision under appeal, summarize the issues and relevant factors considered in the appeal, set out the reasons on which the Panel based its determination, and specify the outcome of the appeal. Hudson argued that the Reasons of the Tribunal were inadequate.
The Court held that the Tribunal should be accorded deference on all findings of fact or law, or an exercise of discretion in respective matters within its exclusive jurisdiction, unless those findings were patently unreasonable. Questions about the application of common law rules of natural justice and procedural fairness should be decided on the basis of whether the Tribunal acted fairly, and all other matters would be reviewed on a standard of correctness, as dictated by section 58 of the ATA.
The Tribunal is under a statutory duty to provide reasons for its decision and therefore, it was not necessary to refer to the common law rules of natural justice to locate an obligation to provide reasons. The question for the Court was whether the standard of review with respect to Reasons should turn on the statutory duty (which might be considered a matter within the Tribunal’s exclusive jurisdiction and therefore, subject to the patent unreasonableness standard), or whether the issue around Reasons for decision should fall into the category of other matters and therefore, attract a standard of correctness.
The Court stated that a failure to provide Reasons is not trivial. Where the Tribunal is statutorily required to provide Reasons, a failure to do so will violate the duty of fairness and amount to a jurisdictional error by that statutory delegate. Such a matter is therefore not within the exclusive jurisdiction of the Tribunal and the standard of review should be the less deferential standard of correctness. The standard of review on the question of whether the Tribunal erred in finding that the Ministry’s decision was reasonably supported by the evidence would be reviewed on a standard of patent unreasonableness.
The Court reviewed the adequacy of the Tribunal’s Reasons on the standard of correctness, and was guided by the articulation of the standard in Dunsmuir v. New Brunswick, 2008 SCC 9 (“Dunsmuir”) where the Court stated: “when applying the correctness standard, a reviewing court will not show deference to the decision makers reasoning process; it will rather undertake its own analysis of the question”. The Court held that the Tribunal failed to explain the evidentiary basis for its conclusion that Hudson’s physician or assessor had not confirmed that she had severe physical impairment directly or significantly restricting her ability to perform daily living activities. On the question of whether the Tribunal’s finding that the Petitioner did not have a severe physical impairment could be assailed, the Court agreed that the question of whether or not Hudson met this definition was a question of fact or mixed fact and law to which the Tribunal was entitled to deference, but that with the statutory precondition for providing reasons unfulfilled in this matter, no deference was warranted. The Tribunal would have been entitled to deference, had it explained its reasoning and the findings of fact upon which its conclusions were based. The Tribunal had not adhered to the statutory requirement to provide Reasons, because it failed to disclose the evidence upon which it relied in reaching its conclusion.
Since Hudson’s application was being allowed on the basis that the Tribunal’s Reasons for decision were inadequate, the Court was not in a position to decide whether the Tribunal’s decision was patently unreasonable as to its decision to deny the PWD designation. It was open to the Tribunal to reconvene and come to a reasoned conclusion, having weighed the evidence and applied it to the statutory criteria, that Hudson remained ineligible for a PWD designation. However, the reconvened Tribunal could only be reviewed on a patent unreasonableness standard with respect to the substantive decision if the problem with Reasons was remedied and there were no other jurisdictional errors.
Hudson’s petition was allowed and the Tribunal’s decision was set aside. Because the Tribunal had violated its statutory duty to provide Reasons, the matter was sent back to a differently constituted Tribunal for consideration of Hudson’s appeal.
To stay current with the new case law and emerging legal issues in this area, subscribe here.