Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers compensation – Benefits – Policies – Validity and application of policies and guidelines – Statutory provisions – Judicial review – Compliance with legislation – Jurisdiction of court
Jozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal),  B.C.J. No. 801, 2012 BCCA 174, British Columbia Court of Appeal, April 26, 2012, M.V. Newbury, P.A. Kirkpatrick and H. Groberman JJ.A.
The Workers Compensation Appeal Tribunal (WCAT) appealed a decision, which allowed the Respondent’s application for a judicial review of compensation entitlement and invalidating a policy. The respondent cross-appealed the judicial review decision on the basis of the invalidation of policy.
The Respondent suffered a workplace injury to his lower back in 2004, and suffered from chronic pain and disc protrusion as a result. He sought a permanent partial disability award under s.23 of the Workers Compensation Act, which he was declared entitled to by the Workers’ Compensation Board (the “Board”). The Board assessed his compensation entitlement using the functional impairment method under s.23.1 of the Act, and held that the loss of earnings methodology set out under s.23(3) of the Act was inapplicable. The Respondent’s application for reassessment to the WCAT was unsuccessful.
The Respondent applied for judicial review of the WCAT’s decision on the basis that the decision underestimated the degree of his impairment. The application was allowed on the basis that the WCAT’s decision was patently unreasonable and that a portion of the policy was not rationally supported by the legislation. The Board appealed from the chambers judge’s decision on the basis that she inappropriately engaged in a review of the policy, while the Respondent cross-appealed on the basis that the chambers judge should have found the policy to be of no force and effect.
The Court dismissed the appeal and allowed the cross-appeal.
The chambers judge was within her supervisory jurisdiction to review the legality of the policy and that attempting to oust the powers of superior courts to review tribunal decisions for errors of jurisdiction, including the interpretation of a statute, would violate s.96 of the Constitution Act. The chambers judge applied the proper standard to determine that the policy in question was unreasonable in that it was inconsistent with the statute as it did not require the Board to consider whether the amount of compensation appropriately compensated the worker.
The Court held that the chambers judge was in error in failing to exercise her discretion to declare the impugned policy to be of no force or effect. The Court therefore held that the policy was of no force or effect to the extent that it precludes the Board or WCAT from considering the appropriateness of the amount of compensation that would be awarded under the functional impairment method in accordance with s.23(3) and (3.1) of the Act.
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