Nurse’s application for judicial review of WCAT decision dismissed for failing to comply with limitation period

Court dismisses judicial review for failing to comply with a legislatively prescribed limitation date.

Administrative Law – Decisions of administrative tribunals – Delay – Judicial Review – Legislative compliance – Mental stress – Patent unreasonableness – Standard of Review – Workers Compensation – Workers Compensation Boards

Van Dam v. British Columbia (Workers’ Compensation Appeal Tribunal), [2017] B.C.J No. 271, 2017 BCSC 227, British Columbia Supreme Court, February 14, 2017, E.J. Adair J.

The petitioner, a nurse, brought an application for review of a decision of the Workers’ Compensation Appeal Tribunal (“WCAT”) relating to the petitioner’s claim for compensation for mental stress she alleged was caused by the death of a patient. WCAT issued its decision on February 20, 2014. However, the petitioner filed her application for review of the WCAT decision on May 28, 2015, outside the 60 day period prescribed by the Administrative Tribunals Act. The respondent, Fraser Health Authority, brought an application to dismiss the petition on the basis that the petitioner was out of time to file her petition.

In opposing the application to dismiss, the petitioner’s former legal counsel provided evidence that he advised her to wait for a BC Court of Appeal decision to determine whether WCAT had the jurisdiction to reconsider its own decision on patent unreasonableness grounds through WCAT’s internal reconsideration process. On December 12, 2014, the petitioner filed an application for WCAT reconsideration. On December 18, 2014, the BC Court of Appeal held that WCAT could not reconsider its own decision on patent unreasonableness grounds. Counsel for the petitioner explained in an affidavit that he intended on waiting for a final decision from WCAT on the issue of jurisdiction and file a petition for judicial review shortly thereafter. On April 24, 2015, WCAT advised the petitioner that her application for reconsideration would not be processed given the findings of the BC Court of Appeal. On May 28, 2015, the petitioner filed her application for judicial review.

The Court was not satisfied that the petitioner provided a reasonable explanation for the delay in filing her petition. The Court held that even a delay of eight months, from April 21, 2014 (the expiration of the 60-day limitation period), to December 2014 (when the petitioner filed her application for WCAT reconsideration), was unreasonable and incompatible with the clear intention of the legislation to have administrative matters resolved in a timely manner. In any event, the Court did not accept the petitioner’s argument that it was reasonable for her to wait to file her petition until WCAT advised her it was no longer processing her reconsideration application given the finding of the BC Court of Appeal in December 2014.

In the result, the Court held that the petitioner failed to establish one of the grounds set out in section 57(2) of the Administrative Tribunals Act and therefore the Court was unable to exercise its discretion to extend the time for bringing the petition for judicial review. Accordingly, the Court granted Fraser Health Authority’s application and dismissed the petition.

This case was digested by Jackson C. Doyle of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jdoyle@harpergrey.com or review his biography at http://www.harpergrey.com.

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