The Workers’ Compensation Appeal Tribunal does not have the residual discretion to reject applications for an extension of time under s. 243(3) of the Workers Compensation Act once the two statutory criteria set out in that provision are met

Administrative law – Decisions of administrative tribunals – Workers compensation – Extention of time – Judicial review – Jurisdiction – Statutory provisions – Standard of review – Correctness – Compliance with legislation

Kerton v. British Columbia (Workers’ Compensation Appeal Tribunal), 2010 B.C.J. No. 830, 2010 BCSC 644, British Columbia Supreme Court, May 5, 2010, E. Rice J.

The petitioner, Kerton, sought judicial review of a decision of the Workers’ Compensation Appeal Tribunal (the “WCAT”) denying him an extension of time to appeal a decision of the Review Division of the Workers’ Compensation Board. Section 243(3) of the Workers Compensation Act, R.S.B.C. 1996, c. 492 provides that the chair of the WCAT “may extend the time to file the notice of appeal even if the time to file has expired” where the chair is satisfied that (a) special circumstances existed which precluded the filing of a notice of appeal within the applicable time period, and (b) an injustice would otherwise result. The WCAT had interpreted the word “may” in this provision as establishing a residual discretion to decline to extend the time to request a review or file an appeal, even where the special circumstances and injustice criteria have been met. The petitioner argued that the WCAT has no such residual discretion.

The court found that although findings of fact or law or exercises of discretion over which an expert tribunal has exclusive jurisdiction are subject to a standard of review of patent unreasonableness, in the circumstances of this case the consideration of the extent of WCAT’s discretionary power to refuse to extend the time limit to file an appeal is a question of jurisdiction that is subject to the standard of review of correctness. In determining the appropriate standard of review, Mr. Justice Rice noted that the question under consideration was one of legal reasoning and not necessarily within the special expertise of WCAT, and that determining the extent of an administrative tribunal’s discretionary power is properly within the domain of the judiciary. He declined to find that WCAT was entitled to the highest standard of curatorial deference simply because it was interpreting its own statute, and reasoned that to come to such a ruling would create a dangerously powerful shield around WCAT and would allow it to interpret its own jurisdiction in the broadest possible manner with the courts only free to step in if the tribunal were to step over the line of patent unreasonableness.

Turning to s. 243(3), Mr. Justice Rice held that WCAT had misinterpreted s. 243(3) and that it does not have the residual discretion to deny an extension once the criteria set out in s. 243(3) are met. In appropriate circumstances the word “may” can import the imperative rather than the permissive. In this case, the presence of the specific criterion saying “an injustice would otherwise result” coupled with the interpretation that WCAT had adopted, meant that an injustice resulted every time that WCAT exercised its residual discretion to deny an extension of time. The legislature could not have intended an interpretation of s. 243(3) that works an injustice. Accordingly, Mr. Justice Rice held that WCAT had exercised its discretion improperly and directed that it reconsider the petitioner’s application for an extension of time in light of the correct interpretation of s. 243(3).

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