COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Johnson v. Workers' Compensation Board of British Columbia, |
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2008 BCCA 436 |
Date: 20081105
Docket: CA034775; CA034776
Between:
Gregory Allan Johnson
Respondent
(Petitioner)
And
Workers' Compensation Board of British Columbia
Appellant
(Respondent)
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Before: |
The Honourable Madam Justice Rowles |
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The Honourable Madam Justice Kirkpatrick |
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The Honourable Mr. Justice Bauman |
| J. Arvay, QC S. Tucker |
Counsel for the Appellant |
| F.A. Schroeder |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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17 October 2008 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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5 November 2008 |
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Written Reasons of the Court |
Reasons for Judgment of the Court:
Introduction
[1] The Workers’ Compensation Board ("WCB") has brought an appeal from an order dated 31 January 2007, certifying proceedings commenced under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA] as class proceedings under the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA]. The order under appeal appointed the petitioner, Mr. Gregory Allan Johnson, as the representative of the class, set out the relief sought by the petitioner, and identified the common issues. Put in general terms, the issue raised on the appeal is whether the JRPA proceedings ought to have been certified as class proceedings.
[2] When the appeal came on for hearing before us, counsel were in agreement that the JRPA proceedings were in a "muddle". Counsel wished to proceed with the appeal of the order certifying the JRPA proceedings as class proceedings but we declined to do so and adjourned the appeal with reasons to follow. In adjourning the appeal, we considered a later order made by the chambers judge in relation to the common issues and the order made by a division of this Court on the appeal from the judge’s order respecting the common issues. To explain our reasons for concluding that the appeal ought to be adjourned to await the outcome of further proceedings in the Supreme Court of British Columbia, it is necessary to refer in some detail to the history of the matter.
The background leading to the filing of the Petition under the Judicial Review Procedure Act
[3] Mr. Johnson, the petitioner in the JRPA proceedings, is a disabled welder who lives in Barriere, British Columbia. Mr. Johnson was injured in a workplace accident in 1985 and received benefits from the WCB for several months that year. He deposed that he continued to have back problems throughout the 1980s and 1990s. In addition, in 1988 and in 1996, he injured his mid-back and neck in two more workplace accidents and received wage loss benefits from the WCB for periods immediately following those accidents.
[4] In late March 1999, Mr. Johnson suffered pain to a degree that he could not walk. After being taken to the hospital by ambulance, he was seen by a neurosurgeon who diagnosed a herniated disc at the L5-S1 level of the spine. Mr. Johnson elected to have a discectomy in an effort to correct the herniation and nerve root compression in his spine. The surgery was performed on 31 March 1999, and Mr. Johnson was off work for several months after that.
[5] On 21 April 1999, Mr. Johnson wrote WCB asking that his 1985 claim be reopened. In July 1999, a WCB case manager denied that request. Mr. Johnson appealed the denial of his claim to the Workers’ Compensation Review Board ("Review Board").
[6] On 29 May 2000, Mr. Johnson re-injured his lower back at work and made a WCB claim. He has not worked since then.
[7] On 21 September 2001, which was over two years after Mr. Johnson had sought further benefits, the Review Board allowed Mr. Johnson’s appeal, concluding that the 1999 surgery would not have been required but for the 1985 back injury. Mr. Johnson was not immediately paid these benefits. The WCB policy at the time was to defer payment of retroactive compensation until the expiry of the 30-day time period for an appeal or referral of the Review Board finding to the Appeal Division.
[8] On 15 October 2001, which was within the 30 days from the Review Board's decision on Mr. Johnson's appeal, a WCB Panel of Administrators passed Policy Resolution No. 2001/10/15-03 "Calculation of Interest". The Policy Resolution, which is referred to in decisions as the "New Interest Policy", is attached as an appendix to these reasons.
[9] The New Interest Policy states that the WCB’s discretion to pay interest on retroactive wage-loss and pension lump-sum payments will only be exercised where it is determined that "a blatant Board error necessitated the payment". The New Interest Policy describes "blatant" as an "obvious and overriding error" and states that an understandable error based on misjudgment is not a "blatant" error. The New Interest Policy provides that, where interest is paid, it will be paid at a rate equivalent to the prime lending rate of the banker to the government. The New Interest Policy states that it is "effective November 1, 2001, and will apply to all decisions to award or charge interest on or after that date".
[10] By letter dated 4 December 2001, WCB informed Mr. Johnson that he would be paid retroactive wage loss benefits to cover the period 27 March 1999 through 23 November 1999, with the exception of two days when he worked in August. The total paid was $18,864.83, and did not include any sum for interest.
[11] Upon Mr. Johnson’s request, a letter decision dated 17 May 2002 was issued confirming that no interest would be paid on the wage loss benefits he had received. Mr. Johnson then commenced an appeal to the Review Board of the letter decision denying him interest on the retroactive payments.
[12] The Workers Compensation Amendment Act, 2002, S.B.C. 2002, c. 56, which came into force on 2 January 2003, replaced the Panel of Administrators with a board of directors. Then the Workers Compensation Amendment Act (No. 2), 2002, S.B.C. 2002, c. 66, [Amendment Act, (No. 2) 2002], which came into force on 3 March 2003, created the Workers’ Compensation Appeal Tribunal ("WCAT") and instituted a new appeal procedure under the Workers Compensation Act, R.S.B.C. 1996, c. 492 [WCA]. As a result of the Amendment Act (No. 2), 2002, the Review Board was eliminated. Because Mr. Johnson's appeal had not been considered by a Review Board panel prior to 3 March 2003, his appeal was transferred to the WCAT under the transitional provisions contained in s. 38(1) of Part 2 of the Amendment Act (No. 2), 2002.
The designation of a "Precedent Panel" for the hearing of Mr. Johnson’s appeal
[13] The WCAT chair determined that the matters in Mr. Johnson's appeal were "of special interest or significance to the workers' compensation system" as a whole. Under s. 238(6) of the WCA, as amended by Amendment Act (No. 2), 2002, the chair appointed a three-member panel to hear the appeal (the "Precedent Panel"). The term "precedent panel" does not appear in the WCA, but Item #8.20 of WCAT's Manual of Rules of Practice and Procedure uses the term to describe a panel appointed under s. 238(6) which must consist of three to seven members. Section 238 provides, in part:
238 (1) All appeals to the appeal tribunal must be heard by panels appointed under this section.
(2) The chair must establish the panels of the appeal tribunal.
(6) If the chair determines that the matters in an appeal are of special interest or significance to the workers' compensation system as a whole, the chair may appoint a panel of up to 7 members with either of the following memberships:
(a) the chair or a vice chair, acting as presiding member, plus additional vice chairs;
(b) the chair or a vice chair, acting as presiding member, plus additional vice chairs and extraordinary members.
(7) If a panel is constituted under subsection (6)(b),
(a) there must be an equal number of extraordinary members appointed who have experience in employers' interests and who have experience in workers' interests, and
(b) the extraordinary members must not constitute a majority of the membership of the panel.
(8) A panel has the power and authority of the appeal tribunal in an appeal assigned to the panel under this section.
[Emphasis added.]
[14] The significance of a decision of a precedent panel appointed under s. 238(6) is apparent from section 250(3) of the WCA:
250 (1) The appeal tribunal may consider all questions of fact and law arising in an appeal, but is not bound by legal precedent.
(2) The appeal tribunal must make its decision based on the merits and justice of the case, but in so doing the appeal tribunal must apply a policy of the board of directors that is applicable in that case.
(3) The appeal tribunal is bound by a decision of a panel appointed under section 238(6) unless
(a) the specific circumstances of the matter under appeal are clearly distinguishable from the circumstances addressed in the panel's decision, or
(b) subsequent to the panel's decision, a policy of the board of directors relied upon in the panel's decision was repealed, replaced or revised.
(4) If the appeal tribunal is hearing an appeal respecting the compensation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the appeal tribunal must resolve that issue in a manner that favours the worker.
[Emphasis added.]
[15] Section 82(1) of the WCA, as amended, provides:
82 (1) The board of directors must
(a) set and revise as necessary the policies of the board of directors, including policies respecting compensation, assessment, rehabilitation and occupational health and safety, and
(b) set and supervise the direction of the Board.
[16] Sections 258 and 259 of the WCA, as amended, provide:
258 (1) If, following a review under section 96.2, a review officer's decision requires payments to be made to a worker or a deceased worker's dependants, the Board must
(a) begin any periodic payments, and
(b) pay any lump sum due under section 17(13).
(2) In the absence of fraud or misrepresentation, an amount paid under subsection (1) to a worker or a deceased worker's dependants is not recoverable.
(3) If a review officer has made a decision described under subsection (1), the Board must defer the payment of any compensation applicable to the time period before that decision
(a) for a period of 40 days following the review officer's decision, and
(b) if the review officer's decision is appealed under section 239, for a further period until the appeal tribunal has made a final decision or the appeal has been withdrawn, as the case may be.
(4) Subsection (3) applies despite section 19.1, 22(1), 23(1) or (3), 29(1) or 30(1).
(5) If the appeal tribunal's decision on an appeal requires the payment of compensation, all or part of which was deferred under subsection (3), interest must be paid on the deferred amount of that compensation as specified in subsection (6).
(6) Interest payable under subsection (5) must be calculated in accordance with the policies of the board of directors and begins
(a) 41 days after the review officer made his or her decision, or
(b) on an earlier day determined in accordance with the policies of the board of directors.
259 (1) The commencement of a review under section 96.2 or of an appeal under this Part respecting a matter described in section 96.2(1)(b) does not relieve an employer from paying an amount in respect of a matter that is the subject of the review or appeal.
(2) If the decision on a review or an appeal referred to in subsection (1) requires the refund of an amount to an employer, interest calculated in accordance with the policies of the board of directors must be paid to the employer on that refunded amount.
[17] Section 251(1) of the WCA, as amended, provides:
251 (1) The appeal tribunal may refuse to apply a policy of the board of directors only if the policy is so patently unreasonable that it is not capable of being supported by the Act and its regulations.
[18] Section 246(2)(i) of the WCA, as amended, authorizes WCAT to "request any person or representative group to participate in an appeal if [WCAT] considers that this participation will assist [it] to fully consider the merits of the appeal". Under that subsection the WCAT Precedent Panel invited the following groups to participate in Mr. Johnson’s appeal:
B.C. Federation of Labour
Business Council of B.C.
Coalition of B.C. Businesses
Employer's Forum to the WCB
Employers' Advisers
Workers' Advisers
Workers' Compensation Advocacy Group
[19] WCAT received submissions from the Employers' Advisers and the Workers' Advisers regarding interest on retroactive benefits and each replied to the submissions of the other. The submissions were disclosed to Mr. Johnson, and his union representative provided a submission.
[20] On 8 July 2005, the three-member WCAT Precedent Panel dismissed Mr. Johnson’s appeal in a unanimous written decision: WCAT-2005-03622-RB. The Precedent Panel considered the New Interest Policy to be a policy of the board of directors, which s. 250(2) of the WCA, (set out in paragraph 14 of these reasons) requires WCAT to apply, if applicable.
[21] The Precedent Panel decided that the New Interest Policy applies to initial adjudicative decisions concerning interest on or after 1 November 2001, but not to appeals where the initial adjudicative decision concerning interest was made prior to 1 November 2001. It was the view of the Precedent Panel that the wording of the New Interest Policy suggested that it should apply to all decisions made after 1 November 2001 about whether interest was payable and that such an interpretation would have a retrospective, not a retroactive, effect. As a result, the Precedent Panel did not address the common law presumption that legislation is not intended to be retroactive unless such construction is expressly, or by necessary implication, required by the language of the statute. Similarly, the Precedent Panel did not consider, or at least made no reference to, the 1 March 1993 WCB policy on retroactivity of policy changes.
[22] The Precedent Panel concluded that the decision to deny interest to Mr. Johnson was made on 4 December 2001, when the WCB advised Mr. Johnson of the amount payable. The Precedent Panel also concluded that the Review Board finding of 21 September 2000, that Mr. Johnson was entitled to wage loss benefits, left the question of interest to be adjudicated by a WCB officer because it did not mention interest. The Precedent Panel determined that Mr. Johnson's entitlement to interest had not been established prior to 1 November 2001, and that the July 1999 denial of benefits had been a question of judgment rather than a "blatant" error, and therefore interest was not payable to Mr. Johnson under the New Interest Policy.
[23] As expressly stated in its decision, the Precedent Panel’s consideration of the question of whether interest was payable was directed solely to the benefits determined to be payable as retroactive wage loss benefits of $18,864.83 covering the period 27 March 1999 through 23 November 1999.
[24] On 29 October 2003, the WCB awarded Mr. Johnson a permanent disability pension of the equivalent to 14.5 percent permanent functional impairment for his back disability, effective 15 January 2001. The pension was attributed 50 percent to his 1985 WCB claim and 50 percent to the 2000 WCB claim. Mr. Johnson did not receive interest on the retroactive award. Whether interest ought to have been paid on that award was not considered by the Precedent Panel.
[25] After the Precedent Panel’s decision, Mr. Johnson commenced JRPA proceedings in the Supreme Court of British Columbia seeking declaratory relief in relation to the New Interest Policy and WCAT’s application of that Policy to the wage loss benefits he had received of $18,864.83.
The Judicial Review Procedure Act proceedings and the order made pursuant to the Class Proceedings Act
[26] In the petition he filed under the JRPA, Mr. Johnson asserted that items 2 and 6 of the Panel of Administrators' Policy Resolution creating the New Interest Policy contravened section 5(1) of the WCA and that item 6, with regard to the retroactive application of the New Interest Policy, was ultra vires the Panel of Administrators' statutory authority. Mr. Johnson also asserted that the Precedent Panel’s interpretation of the New Interest Policy in its decision WCAT‑2005‑03622‑RB was patently unreasonable.
[27] Mr. Johnson brought an application for an order certifying the proceeding as a class proceeding under the CPA, and appointing him as representative of the class. The proposed class was all workers claiming compensation under the WCA who were injured and denied benefits prior to 1 November 2001 and who have been denied interest by the WCB on retroactive wage loss and pension awards.
[28] WCB opposed certification of the proceedings as class proceedings. WCAT took no position on the issue.
[29] The chambers judge concluded in reasons that may be found at 2007 BCSC 24 that while the petition brought under the JRPA was not an action, the JRPA proceedings could nevertheless be properly brought within the CPA on the basis of the declarations sought by Mr. Johnson in his petition. The judge’s reasons were issued on 9 January 2007 but further submissions were invited on the common issues. Further reasons were delivered orally on 31 January 2007 confirming the common issues in the form earlier proposed.
[30] The material part of the formal order, dated 31 January 2007, reads as follows:
THIS COURT ORDERS that these proceedings are certified as class proceedings
a) the class is all workers whose claim for interest on retroactive wage loss and pension awards was decided on or after November 1, 2001, a sub-class of which is those who were injured prior to November 1, 2001;
b) the Petitioner is appointed the representative of the class;
c) pursuant to the provisions of the Judicial Review Procedure Act RSBC 1996 c. 241, the Petitioner seeks an Order that the New Interest Policy of the Respondent Workers’ Compensation Board of British Columbia effective November 1, 2001 is set aside as ultra vires the enabling legislation, in particular section 5 of the Workers’ Compensation Act, RSBC 1996 c. 492 ("WCB") [sic] alternatively, for the sub-class, the New Interest Policy is ultra vires the statutory authority of the WCB to the extent that it purports to apply retroactively;
d) The Petitioner seeks an Order setting aside that part of the New Interest Policy that resulted in denial of interest to the Petitioner and the other members of the class and an order that the WCB pay interest upon the retroactive wage loss award of the Petitioner and on the retroactive wage loss and pension awards of the other members of the class;
e) the common issues are:
1) Whether the New Interest Policy is patently unreasonable in the face of Section 5 of the WCA;
2) Whether the New Interest Policy is retroactive and therefore ultra vires the statutory authority of the WCB; and
f) notice to the class is dispensed with.
[31] On 5 February 2007, the WCB filed two Notices of Appeal: the first (CA034775) made reference to the judge’s reasons of 9 January and the second (CA034776), to the reasons of 31 January. It was unnecessary for the WCB to file two Notices of Appeal because an appeal is brought from the order, not the reasons, but the two appeals have proceeded together.
[32] Before the appeals in CA034775 and CA034776 had been heard, an application to determine the merits of the common issues was brought before the chambers judge for determination.
Determination of the common issues
[33] In a three-day hearing based on affidavits in April 2007, Mr. Johnson sought judicial review of the WCAT Precedent Panel decision on behalf of all class members. In her decision issued on 26 September 2007, found at 2007 BCSC 1410, the chambers judge stated the common issues as follows:
(a) whether the New Interest Policy is patently unreasonable in the face of s. 5 of the WCA; and
(b) whether the New Interest Policy is retroactive and therefore ultra vires the statutory authority of the WCB.
[34] In her reasons, the chambers judge said, commencing at para. 94:
[94] The New Interest Policy provides for payment of interest where there was a "blatant error" by WCB staff. As a result, the question is whether it is patently unreasonable for the New Interest Policy to distinguish between workers on the basis of the type of error made by the WCB for the purpose of paying interest.
[95] Like the NSCA in Boyle Estate [Boyle Estate v. Nova Scotia (Workers' Compensation Appeals Tribunal), 2004 NSCA 88, 225 N.S.R. (2d) 69], I conclude that the plain meaning of "compensation" in s. 5 of the WCA includes interest, and that the term is qualified by the phrase "as provided by this Part", referring to Part 1 of the WCA. Section 5(2) provides that compensation is "payable" under Part 1 from the first working day following the date of injury. The term "payable" is used in the sense of "required to be paid", but is subject to the other terms of Part 1.
[96] Part 1 includes s. 35, providing that payments must be made periodically at the times and in the form the WCB considers advisable. That section does not appear to give the WCB discretion over the amount of payment, but by giving discretion over the timing of payment, gives the WCB some discretion regarding interest.
[97] Sections 55, 57 and 57.1 provide for situations in which compensation is either not payable or may be reduced. Those situations are all ones where there has been fault or non-cooperation by the worker, through failing to apply in the prescribed form in a timely way (s. 55), failing to cooperate with a medical examination or failing to follow reasonable medical advice (s. 57), or failing to provide the WCB with necessary information (s. 57.1).
[98] There is nothing in Part 1 which provides that compensation is not payable in situations involving erroneous judgement calls by the WCB.
[99] The board of directors is empowered by s. 82(1) of the WCA to set policies respecting compensation, and as a result, may set policies regarding interest. Section 251(1) permits the WCAT to refuse to apply a policy of the board of directors if the policy is so patently unreasonable that it is not capable of being supported by the WCA and its regulations.
[100] The New Interest Policy determines entitlement to interest on the basis of the type of error made by WCB. There is nothing in the WCA which suggests that it is appropriate to take into account the WCB's conduct in determining what compensation is payable. The WCB's conduct is simply irrelevant to determination of what compensation a worker will receive.
[101] Like the PEIAD in Whitlock [Whitlock v. Prince Edward Island (Workers' Compensation Board), 2000 PESCAD 25, 196 Nfld. & P.E.I.R. 113], I conclude that a policy which bases entitlement to interest on whether there has been a WCB staff error of the type required by the policy is patently unreasonable.
[102] The class has met the very high standard of review. The New Interest Policy is not capable of being supported by the WCA and its regulations, and it was patently unreasonable for the WCAT to conclude otherwise. The fact that the WCAT Precedent Panel was not provided with argument concerning the effect of s. 5 of the WCA helps to explain how it fell into this error.
[35] On the second common issue, the chambers judge said, at para. 103, under the heading "Retroactivity", that as a result of her conclusion on the first issue, it was unnecessary to consider the issue of retroactivity. The chambers judge therefore did not consider the question of whether the Precedent Panel’s analysis and conclusion on whether the New Interest Policy was intended to have retrospective or retroactive effect was in accord with the case authorities such as Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271 at 279, Martelli v. Martelli (1981), 130 D.L.R. (3d) 300, 33 B.C.L.R. 145 (C.A.), Weist v. Middlecamp 2003 BCCA 437, 15 B.C.L.R. (4th) 197, and with the explanation concerning the distinction between retrospectivity and retroactivity given by Mr. E. A. Driedger in "Statutes: Retroactive Retrospective Reflections" (1978), 56 Can. Bar Rev. 264 at 268-69.
[36] Having concluded that the New Interest Policy was not capable of being supported by the WCA and its regulations, and that it was patently unreasonable for the WCAT to have concluded otherwise, the chambers judge went on to consider what remedy was appropriate. The judge stated her conclusions as follows:
[104] In oral argument, Mr. Schroeder, class counsel, agreed with the submissions of the WCB and WCAT that the proper remedy was to refer the decision to the WCAT Precedent Panel for reconsideration. Mr. Schroeder suggested that the court could give some direction on what interest policy would be lawful.
[105] The common issue has been determined, that the New Interest Policy is patently unreasonable in the face of s. 5 of the WCA. It was patently unreasonable for WCAT to fail to conclude that the New Interest Policy is so patently unreasonable that it is not capable of being supported by the WCA and its regulations. The procedure the WCAT must follow in such circumstances is set out in s. 251 of the WCA.
[106] In my view, it is not appropriate for the court to give further direction about what interest policy might be lawful. There may be several potential policies which would be capable of being supported by the WCA and its regulations.
[107] As a result, the WCAT Precedent Panel must reconsider the petitioner's appeal in light of the determination that the New Interest Policy is so patently unreasonably that it is not capable of being supported by the WCA and its regulations. The question of remedy for any other class members may be the subject of further submissions.
[Emphasis added.]
[37] The material part of the judge’s order on the common issue she decided reads as follows:
THIS COURT ORDERS that:
1. the New Interest Policy ("NIP") is patently unreasonable;
2. it was patently unreasonable for WCAT to fail to conclude that the NIP is so patently unreasonable that it is not capable of being supported by the Worker's Compensation Act, R.S.B.C. 1996, c. 492 (the "WCA"), and its regulations;
3. the WCAT Precedent Panel must reconsider the Petitioner's appeal in WCAT Decision #2005-03622-RB in light of the determination that the NIP is so patently unreasonable that it is not capable of being supported by the WCA and its regulations;
4. the question of remedy for any other class members may be the subject of further submissions by counsel to this Court; and
5. there will be no order as to costs.
The appeal of the order on the common issues
[38] The WCB brought an appeal from the order of the chambers judge on the common issues and that appeal was heard before the appeal of the certification order under the CPA. On 27 May 2008, the appeal of the order on the common issues was allowed but without analysis of the question of whether the New Interest Policy was so "patently unreasonably that it is not capable of being supported by the WCA and its regulations": Johnson v. Workers’ Compensation Board, 2008 BCCA 232. In allowing the appeal, Low J.A. reasoned:
[6] … On the hearing of the judicial review which led to the order now under appeal, the chambers judge decided that it was unnecessary to decide the second issue because she was of the view that the proper answer to the first issue was in the affirmative. The basis of her decision was that s. 5 of the Act requires the Board to provide "compensation" to injured workers and compensation must be interpreted to include interest.
[7] The issue that the Appeal Tribunal was asked to hear and the issue it decided in its reasons was whether the new interest policy that came into effect was retroactive, retrospective or prospective. The tribunal decided that the new policy was retrospective and, although the decision allowing Mr. Johnson’s claim on an internal appeal pre-dated the date of the new policy, because the issue of interest was determined by the case manager after the new policy came into being Mr. Johnson was not entitled to interest.
[8] It is apparent from a reading of the tribunal’s decision that it merely interpreted the new policy on the standard of patent unreasonableness. It did not consider whether the new policy itself was patently unreasonable.
[9] Although she noted that the Appeal Tribunal concerned itself only with the retroactivity issue, the chambers judge purported to determine the issue of the reasonableness of the new interest policy as though that issue had been determined by the tribunal. In para. 55 of her reasons, the judge stated the issue before her as follows:
As a consequence of s. 251(1) and the standard of review, the question for this court is whether the [Appeal Tribunal's] failure to find the New Interest Policy to be so patently unreasonable that it is not capable of being supported by the WCA and its regulations, was itself a patently unreasonable decision. This is a very high standard for the petitioner to meet.
[10] After further analysis, the chambers judge concluded at para. 102 as follows:
The class has met the very high standard of review. The New Interest Policy is not capable of being supported by the WCA and its regulations, and it was patently unreasonable for the [Appeal Tribunal] to conclude otherwise. The fact that the [Appeal Tribunal] was not provided with argument concerning the effect of s. 5 of the WCA helps to explain how it fell into this error.
[11] With respect, I think the judge erred by finding error in the decision of the Appeal Tribunal on an issue that the tribunal was not called upon to consider and did not consider. It is fundamental to judicial review of decisions or orders of tribunals that reviews be confined to those matters that were determined by the tribunal. What the judge did here was decide in the first instance the issue of the legality of the new interest policy on application of the patently unreasonable test as though that issue ought to have been decided by the tribunal.
[12] The respondent argued before us that his petition challenged the legality of the new interest policy on the basis of a direct review of the new interest policy itself, without reference to the Appeal Tribunal. It seems that this argument was not made to the chambers judge. The argument raises issues such as the scope of the relief sought in the petition and whether the respondent can attack the new interest policy on the basis now proposed without first exhausting his internal remedies under the Workers’ Compensation Act. Those are matters the chambers judge was not asked to consider. We should not consider them in the first instance.
[13] Because the chambers judge purported to overturn the decision of the Appeal Tribunal on an issue that was not before the tribunal, I would allow the appeal. However, I would not dismiss the judicial review petition because, as I have noted, the respondent has another argument to make as to whether the court can (or should) consider the legality of the new interest policy directly and without reference to the Appeal Tribunal’s decision. In addition, the retroactivity issue remains to be determined on the judicial review.
[14] I would quash the order of the chambers judge and refer the matter back to the trial court in chambers for consideration of the issues in the petition that remain to be determined.
[Emphasis added.]
[39] The formal order of the Court reads as follows:
THIS COURT ORDERS that the appeal is allowed.
THIS COURT FURTHER ORDERS that the order of the Honourable Madam Justice Gray dated September 26, 2007, is set aside.
THIS COURT FURTHER ORDERS that the application of the Respondent, Gregory Allan Johnson, is referred back to the trial court in chambers for the consideration of the issues in the Petition that remain to be determined, including whether the Supreme Court can or should consider the legality of the policy directly and without reference to the Workers Compensation Appeal Tribunal's decision.
The reconsideration decision of WCAT
[40] For the sake of completeness, we note that before the earlier appeal of the order on the common issues was heard by this Court, the WCAT Precedent Panel reconsidered the decision it had given in #2005-03622-RB, as the chambers judge had directed. In the introduction to its decision dated 20 December 2007, the panel referred to paragraphs 105 to 107 of the decision of the chambers judge (set out in paragraph 36 of these reasons). The panel then stated the issue before it as follows: "Is the worker entitled to interest on his retroactive compensation benefits?"
Reasons for adjourning the appeal of the certification order
[41] The doctrine of mootness, which was considered in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. A two-step analysis is required. The first step is to determine whether the requisite tangible and concrete dispute has disappeared, rendering the issues academic. If it has, it is then necessary to decide whether the court should nevertheless exercise its discretion to hear the case, despite the absence of a live controversy. Courts are guided in the exercise of their discretion by considering the underlying rationale of the mootness doctrine. The summary in the Supreme Court Reports refers to the components of the underlying rationale for the policy respecting mootness:
The first rationale for the policy with respect to mootness is that a court's competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for courts to be sensitive to the effectiveness or efficacy of judicial intervention and demonstrate a measure of awareness of the judiciary's role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa.
[42] In Borowski, the Court concluded that the appeal was moot and that the Court ought not to exercise its discretion in favour of hearing the appeal. The Court went on to observe that the appellant in that case no longer had standing to pursue the appeal as the circumstances upon which his standing was originally premised had disappeared.
[43] In the appeal before us, the issue raised by the appellant WCB is whether the chambers judge erred in concluding that the proceedings brought by Mr. Johnson, the petitioner under the JRPA, ought properly to have been certified as class proceedings under the CPA. In her initial decision dated 31 January 2007, the chambers judge concluded that the declaration sought by the petitioner was of such a nature that it could come within the proceedings contemplated by the CPA. The judge further concluded that class proceedings were an appropriate vehicle for the determination of issues which could potentially affect many workers entitled to benefits referable to past events or claims. Subsequent to making that order, the chambers judge was asked to consider the common issues which had been identified in her January 2007 order.
[44] The remedy contained in the order that resulted from the judge’s consideration of the common issues (set out at paragraph 35 of these reasons) adheres to the usual practice under the JRPA which is to refer the decision under consideration back to the tribunal, in this case to the WCAT Precedent Panel. All counsel agreed that that was the appropriate remedy, given the judge’s conclusion. The order further provided that "the question of remedy for any other class members may be the subject of further submissions by counsel to this Court".
[45] On appeal, the order of the chambers judge dated 26 September 2007 was set aside and Mr. Johnson’s application was
…referred back to the trial court in chambers for the consideration of the issues in the Petition that remain to be determined, including whether the Supreme Court can or should consider the legality of the policy directly and without reference to the Workers Compensation Appeal Tribunal's decision.
[46] The application this Court referred back to the trial court has yet to be heard. At least at this point, the appeal from the order certifying the JRPA proceedings as class proceedings has become academic. In our view, to embark on a consideration of the arguments raised by the WCB on its appeal from the order certifying the proceedings as class proceedings under the CPA would not respect the policy that underpins the mootness doctrine.
[47] We further observe that, depending on the opinion of a chambers judge as to the proper outcome of the application, the question of whether the JRPA proceedings brought by Mr. Johnson could or should be certified as class proceedings under the CPA may well prompt fresh or further submissions.
[48] In the circumstances described, we concluded that the appeal ought to be adjourned, and so ordered.
“The Honourable Madam Justice Rowles”
“The Honourable Madam Justice Kirkpatrick”
“The Honourable Mr. Justice Bauman”
Appendix
WORKERS' COMPENSATION REPORTER
Resolution of the Panel of Administrators
Number: 2001/10/15-03
Date: October 15, 2001
Subject: Calculation of Interest
WHEREAS:
Pursuant to section 82 of the Workers Compensation Act, R.S.B.C. 1996, Chapter 492 and amendments thereto ("Act"), the Panel of Administrators ("Panel") must approve and superintend the policies and direction of the Workers’ Compensation Board ("Board"), including policies respecting compensation, assessment, rehabilitation and occupational safety and health, and must review and approve the operating policies of the Board;
AND WHEREAS:
The Board’s policy regarding interest on retroactive payments of compensation is provided in policy item #50.00 of the Rehabilitation Services and Claims Manual;
AND WHEREAS:
Interest is provided on retroactive wage-loss and pension lump-sum payments where the benefit is for a condition which was previously overlooked or for which the Board previously decided that no payment was due;
AND WHEREAS:
Board policy provides a monthly compound rate of interest that is equal to the average rate of return on the Board’s total investment portfolio;
AND WHEREAS:
The same interest rate is also used with respect to assessment and prevention matters;
AND WHEREAS:
The Policy and Regulation Development Bureau has conducted extensive consultation with stakeholders regarding the appropriate criteria for entitlement to interest and the method of payment calculation;
THE PANEL OF ADMINISTRATORS RESOLVES THAT:
1. Policy item #50.00 of the Rehabilitation Services and Claims Manual is amended to provide simple interest at a rate equal to the prime lending rate of the banker to the government (i.e., the C.I.B.C.). Policy item #50.00 is also amended to restrict the period of time interest may accrue to a maximum period of twenty years.
2. Policy item #50.00 is also amended to provide new criteria for determining when it is appropriate for the Board to pay interest in situations other than those expressly provided for in the Act. The amended policy will provide for interest on retroactive wage-loss and pension lump-sum payments where it is determined that a blatant Board error necessitated the payment. For an error to be "blatant" it must be an obvious and overriding error.
3. Policy items #48.42 and #105.30 of the Rehabilitation Services and Claims Manual are amended to provide consistency with the amendments to policy item #50.00.
4. Policy No. 40:70:40 of the Assessment Policy Manual is amended in order to provide consistency with the amendments to policy item #50.00 of the Rehabilitation Services and Claims Manual.
5. The amendments to policy items #50.00, #48.42 and #105.30 of the Rehabilitation Services and Claims Manual and policy no. 40:70:40 of the Assessment Policy Manual, as attached, are approved. If there is any inconsistency between the wording in the general wording of items 1-4 inclusive of this Resolution and the specific wording in the attachments hereto, the wording in the attachments shall prevail.
6. The amended policies are effective November 1, 2001, and will apply to all decisions to award or charge interest on or after that date. When calculating the amount of interest payable, the new method for determining the applicable rate of interest will apply retrospectively and will be used for the entire entitlement period and will not be limited to entitlement for time periods after November 1, 2001.
DATED at Richmond, British Columbia, October 15, 2001.
Appendix 1
REHABILITATION SERVICES AND CLAIMS MANUAL
PROPOSED AMENDMENTS
[Deletions omitted.]
With respect to compensation matters, the Act provides express entitlement to interest only in the situations covered by sections 19(2)(c) and 92(3). In these situations, the Board will pay interest as provided for in the Act (see policy items #55.62 and #105.30).
The Board has discretion to pay interest in situations other than those expressly provided for in the Act. In these situations, interest may be paid subject to the following conditions:
• The retroactive payment is to a worker or employer in respect of a wage-loss payment (provided under sections 29 and 30 of the Act) or a pension lump-sum payment (provided under sections 22 and 23 of the Act).
• It has been determined that there was a blatant Board error that necessitated the retroactive payment. For an error to be "blatant" it must be an obvious and overriding error. For example, the error must be one that had the Board officer known that he or she was making the error at the time, it would have caused the officer to change the course of reasoning and the outcome. A "blatant" error cannot be characterized as an understandable error based on misjudgment. Rather, it describes a glaring error that no reasonable person should make.
• Interest will be calculated from the first day of the month following the commencement date of the retroactive benefit and up to the end of the month preceding the decision date. Notwithstanding, in no case will interest accrue for a period greater than twenty years.
In all cases where a decision to award interest is made, the Board will pay simple interest at a rate equal to the prime lending rate of the banker to the government (i.e., the CIBC). During the first 6 months of a year interest must be calculated at the interest rate as at January 1. During the last 6 months of a year interest must be calculated at the interest rate as at July 1.
For practical reasons, certain mathematical approximations may be used in the calculations.
The rate of interest provided in this policy will also be used in the calculation of overpayments as outlined in #48.42.