Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Benefits – Average earnings – method of calculation – Policies – Validity and application of policies and guidelines – Judicial review – Evidence – Standard of review – Patent unreasonableness
Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal),  B.C.J. No. 1479, 2012 BCCA 304, British Columbia Court of Appeal, July 17, 2012, H. Groberman, A.W. MacKenzie and D.C. Harris JJ.A.
The appellant worker, a part-time care aide at a private hospital, appealed a dismissal of her judicial review petition seeking to set aside a decision of the Workers’ Compensation Appeal Tribunal (“WCAT”). The sole issue before WCAT was the basis on which to calculate the wage rate to be used to determine the appellant’s permanent disability pension. WCAT held that the appellant’s pension should be calculated on the basis of her earnings as a part-time employee. The appellant had contended that the pension should be calculated based on wages she could have earned as a full-time employee, or alternatively, on the class average of wages earned by employees in her field.
In light of Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,  3 S.C.R. 708, holding that the failure to give adequate reasons does not provide an independent or free-standing ground for judicial review, the appeal focused on the other two grounds advanced before the chambers judge; namely, that (1) WCAT’s conclusion that a particular policy (Policy #67.21) did not apply arose from a patently unreasonable restrictive interpretation, and (2) WCAT’s decision not to calculate the pension based on the appellant’s ability to achieve full-time work was patently unreasonable.
The appeal was dismissed. The appellant had characterized WCAT’s decision in its interpretation of Policy #67.21 by holding that the policy did not apply to new migrants to British Columbia from other parts of Canada as an issue of “fettering decision”. In the Court’s view, fettering of discretion arose where a tribunal “failed to genuinely exercise its discretionary powers in an individual case, but rather made its decision on the basis of pre-existing policy”. Here, WCAT did not fetter its decision but rather the argument was that WCAT’s interpretation of the Policy was patently unreasonable. The Court did not agree with the appellant’s argument. WCAT articulated a principled basis governing the application of the Policy. It went on to examine the kinds of employment disadvantages typically suffered by new entrants and recent immigrants to illustrate why it would be unfair to use their actual earnings as a basis for calculation and why it would be expected that their incomes would increase as they integrated into the workforce. WCAT then articulated reasons why the appellant’s circumstances were not comparable to that of new entrants or recent immigrants. Interpretation of Board policy fell within WCAT’s exclusive jurisdiction and reviewing Courts are required to show deference. WCAT’s interpretation was not “clearly irrational”, nor did it fail to accord with reason or border on the absurd. Therefore, its interpretation of the policy as to when a class average should be used was not found to be patently unreasonable. Furthermore, WCAT’s conclusions that the appellant’s actual earnings were the best representation of her long-term loss of earnings and that it was equitable to calculate her average earnings on that basis was not patently unreasonable. There was some evidence to support WCAT’s findings that full-time jobs were in short supply and that her career would not have paralleled that of her co-workers. WCAT did not ignore the evidence of her work history, skills or education.
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