The Petitioner, Lavigne, unsuccessfully brought an application for judicial review in respect of a reconsideration decision of the Respondent’s Appeal Tribunal, which related to the calculation of her long-term disability pay

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Benefits – Average earnings – method of calculation – Judicial review – Evidence – Natural justice – Hearings – Failure to hold a hearing

Lavigne v. British Columbia (Workers’ Compensation Board), [2010] B.C.J. No. 447, 2010 BCSC 341, British Columbia Supreme Court, January 29, 2010, T.R. Brooke J.

Ms. Lavigne, the Petitioner, was injured in a motor vehicle accident in September 2000 and her claim for benefits was accepted by the Respondent, Workers’ Compensation Board. The Respondent calculated her compensation based upon a 12-month sample of her earnings. The Petitioner repeatedly contested this determination, arguing for the 3-month period immediately before the accident.

The Petitioner, in 2002, advised the Board that, at the time of the accident, she had purchased equipment in reliance on a job offer from John O’Dare. In response, the Board asked for earnings information for the three or five years before the accident. This information was not provided. There was a note in the case manager’s log indicating that there had been no job offer to the Petitioner.

In 2003, the Board disclosed the log note indicating that there was no job offer. After this disclosure, the Workers Compensation Appeal Tribunal (“WCAT”) decided the 12-month period was appropriate for calculating the Petitioner’s earnings (the “Original Decision”).

The Petitioner applied for a reconsideration of the Original Decision. Soon after making the request, she provided a letter from Mr. O’Dare in support of her evidence about the job offer. In 2007, the reconsideration decision was made (the “Reconsideration Decision”) and it upheld the Original Decision. The Panel held that no oral hearing was requested and did not require one to take place.

The Petitioner brought an application for judicial review regarding the Original Decision and the Reconsideration Decision. The Court, in August 2008, found the Original Decision was not patently unreasonable. The Court set aside the Reconsideration Decision.  The Court remitted the matter back to the Panel to consider whether, in light of the O’Dare letter, it was a denial of natural justice for the Panel (in the Reconsideration Decision) not to hold an oral hearing regarding the alleged job offer.

The Panel reconsidered the matter pursuant to the Court’s order. The Panel decided (the Second Reconsideration Decision) the Petitioner knew, at the time she sought a reconsideration, that the O’Dare letter was contradicted by the log note. The Panel held that she could have obtained further evidence to support her argument for a different wage calculation. The Panel denied a recalculation.

The Petitioner brought the within application for judicial review in respect of the Second Reconsideration Decision. The Petitioner also alleged a breach of natural justice in respect of the Reconsideration Decision.

The Court held the Second Reconsideration Decision was not patently unreasonable as it was supported by some evidence. There was evidence that the Petitioner knew the O’Dare letter was disputed by the log note. There was an evidentiary basis supporting the Second Reconsideration Decision.

The Court also concluded that it was not a denial of natural justice for the Panel, in the Reconsideration Decision, to not order an oral hearing. The Petitioner requested there be no oral hearing and did so when represented by counsel. It was not patently unreasonable or unfair for the Panel to not convene an oral hearing in such circumstances.

The petition was dismissed.

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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