The appellant ship captain was unsuccessful in his appeal of a decision by the Worker’s Compensation Appeal Tribunal which upheld the respondent’s decision to dismiss the appellant following the sinking of his ship

27. December 2011 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Employment law – Termination of employment – Discrimination – Judicial review – Application – Evidence

Henthorne v. British Columbia Ferry Services Inc., [2011] B.C.J. No. 2228, 2011 BCCA 476, British Columbia Court of Appeal, November 24, 2011, M.V. Newbury, H. Groberman and N.J. Garson JJ.A.

The appellant, a captain employed by the respondents, British Columbia Ferry Services Inc., appealed the dismissal of his application for judicial review of a decision by the Worker’s Compensation Appeal Tribunal (WCAT). The respondent conducted a Divisional Inquiry after the appellant’s ship sank, and during those proceedings the appellant raised safety concerns related to the safety and seaworthiness of the respondent’s vessels. The appellant was dismissed from his position by the respondent prior to the issuance of the Divisional Inquiry report.

The appellant filed a complaint with the Workers’ Compensation Board (WCB) under s.151 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 claiming he had been terminated because he had voiced safety concerns and seeking an order returning him to active duty. The WCB found that the appellant had established a prima facie case of discrimination and since the respondent could not adequately rebut the appellant’s case, an order was made reinstating the appellant to his former position.

The respondent appealed to the WCAT which held that it had successfully rebutted the appellant’s prima facie case. The WCAT, after hearing evidence from two witnesses for the respondent, set aside the reinstatement order previously made by the case officer. The appellant’s petition for judicial review was dismissed by the chambers judge who held that the WCAT’s decision fell within the range of reasonable outcomes and could not be viewed as patently unreasonable.

The appellant appealed the chambers judge’s decision, asking the appellate court to re-consider whether the WCAT had sufficient evidence before it to establish that the respondents had rebutted the presumption of wrongful termination. The court held that the evidence put before the WCAT, namely the evidence of two members of the respondent corporation, was sufficient to support the conclusion reached by the WCAT. As the decision was not otherwise patently unreasonable, the appeal was dismissed.

Though the WCAT filed a factum on appeal, the court granted the appellant’s motion to strike it on the basis of “real and perceived fairness” to the appellant.

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