Court refuses application for review on reasonableness standard as applicant had not exhausted right of appeal under relevant legislation

21. September 2021 0

Administrative law – Decisions reviewed – Workers Compensation Boards – Judicial review applications – Appeals – Standard of review – Reasonableness – Compliance with legislation – Discretion of delegated authority – Workers compensation – Benefits

Smith v. Manitoba (Appeal Commission), [2021] M.J. No. 211, 2021 MBQB 149, Manitoba Court of Queen’s Bench, June 25, 2021, H. Rempel J.

The applicant Ms. Smith was a victim of a horrific crime. She was prescribed medicinal cannabis by her physicians to treat her symptoms of PTSD under The Victims’ Bill of Rights, C.C.S.M. c. V55 (the “Act”). Her request was denied by the director of compensation on her first request, and then again following her request for reconsideration. She appealed to the Appeal Commission, a specialist tribunal created under the Workers Compensation Act, C.C.S.M. c. W200. In its written decision, the Appeal Commission dismissed her appeal, but provided her with written notice of her right to appeal the decision under s.67 of the Act, which stipulates that an appeal must be brought to the Court of Queen’s Bench within 30 days and that an appeal may be taken only on a question of law or jurisdiction.

Despite the requirements for appeals set out in the Act, Ms. Smith wanted to proceed with a review of the Appeal Commission’s decision on the standard of reasonableness. She argued that her constitutional right to judicial review on the reasonableness standard is not precluded by the legislative scheme for appeals described in the Act and that the court has the concurrent jurisdiction to conduct a judicial review “on the merits”.

The application was dismissed. The court noted that Ms. Smith elected not to proceed with her right of appeal under the legislated standard of review, which limited appeals to questions of law or jurisdiction only. The court held that Ms. Smith did not have the option to avoid the legislated appeal standard designed by the Act and demand a review on the reasonableness standard instead. The court did not agree with Ms. Smith’s argument that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, confirmed that a reviewing court, empowered with a particular appellate standard by legislation, also has concurrent jurisdiction to conduct a reasonableness review on every single decision delegated to administrative decision makers. The court found that Ms. Smith’s appeal was, in essence, related to a disagreement with respect to a finding of fact made by the Commission, and that giving effect to Ms. Smith’s arguments would nullify the legislature’s clear intent to limit appeals to questions of law or jurisdiction as set out in the Act.

The court held that it did not have jurisdiction to engage in a review on the reasonableness standard, and that even if it did, it would not exercise its discretion to do so as Ms. Smith had not exhausted her right of appeal under the Act.

This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact JoAnne G. Barnum at

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