Tribunal appealed judicial review decision setting aside the tribunal’s decision on the basis of an issue not raised by the parties on judicial review. Appeal allowed, chambers judge’s order set aside, and petition for judicial review dismissed.

22. October 2013 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Benefits – Judicial review – Courts – Evidence – Issues not raised by parties

Vandale v. British Columbia (Workers’ Compensation Appeal Tribunal), [2013] B.C.J. No. 1968, 2013 BCCA 391, British Columbia Court of Appeal, September 9, 2013, S.D. Frankel, N.J. Garson and A.W. MacKenzie JJ.A.

The respondent, a worker under the Workers’ Compensation Act, applied for compensation for chronic obstructive pulmonary disease (“COPD”). The respondent was initially awarded compensation for the asthmatic component of his COPD by the Workers’ Compensation Board (the “Board”); however, the respondent appealed the amount awarded. The appellant Workers’ Compensation Appeal Tribunal (“WCAT”), acting within its jurisdiction to “inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined,” held that the asthmatic component of his COPD was not compensable, as it was reversible through the use of medication, and set aside the Board’s decision (the “WCAT decision”).

The respondent applied to the British Columbia Supreme Court for judicial review of the WCAT decision. The chambers judge dismissed the respondent’s two grounds for review; however, the judge raised a third ground not raised by the parties. The judge concluded the WCAT decision was contrary to binding findings of fact made by the Appeal Division (the predecessor to WCAT) in an earlier proceeding (the “Appeal Division decision”) and was patently unreasonable. The judge set aside the WCAT decision.

The appellant appealed to the British Columbia Court of Appeal. The appellant argued the chambers judge should not have permitted a new issue to be raised on judicial review and erred in finding the WCAT decision was patently unreasonable because it was inconsistent with findings in the Appeal Division decision. The court found that while the chambers judge’s interpretation of the Appeal Division decision was one possible interpretation, it was not the only reasonable interpretation. Therefore, the WCAT decision was not patently unreasonable because it failed to give effect to the chambers judge’s interpretation of the Appeal Division decision.

The court held that it was not appropriate to remit the matter to WCAT, as the respondent had not raised the issue at the first hearing and, in effect, the WCAT decision would be set aside and a new hearing held not because the decision failed to pass scrutiny, but because WCAT did not address a point it was not asked to address. The appeal was allowed, the chambers judge’s order set aside, and the respondent’s petition for judicial review dismissed.

This case was digested by Joel A. Morris 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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