Before: The Honourable Madam Justice Dillon

Reasons for Judgment

Petitioner, appearing on his own behalf	S. Baker
Counsel for the respondent, Workers’ Compensation Appeal Tribunal	C. Berkey W. Pylypchuk
Counsel for the respondent, Canada Post Corporation	A. Winter
Counsel for the respondent, Workers’ Compensation Board	S. A. Nielsen
Dates and Place of Trial/Hearing:	December 5-8, and 19, 2006 June 4 and 5, 2007
	Vancouver, B.C.

Introduction

[1] The petitioner seeks an order that the decision of the respondent Workers’ Compensation Appeal Tribunal (“WCAT” or “Tribunal”) dated July 14, 2005 (WCAT-2005-03737) (“final decision”) be set aside, that an oral hearing de novo be held by the Tribunal to reconsider a number of specific issues, and that WCAT be directed to order legal costs to the petitioner for the WCAT appeal. The petitioner also seeks costs for this judicial review.

[2] The petitioner alleges that WCAT erred on a number of substantive and procedural issues including: whether the petitioner’s psychological condition was causally related to his physical injury and whether the physical injury was responsible for exacerbating labour relations so as to cause psychological injury; the duration and extent of temporary disability benefits; entitlement to physiotherapy treatment; interest on retroactive payments; failure to order production of the petitioner’s personnel file from the respondent, Canada Post Corporation (“Canada Post”), and failure to issue subpoenas; abuse of process because of delay between the time the appeals were filed and the WCAT decision; and entitlement to legal expenses including lawyer’s fees, the expense of preparing affidavits, and reimbursement for the expense of having a court reporter at the WCAT hearing.

[3] The petitioner abandons or does not argue issues related to his permanent disability or pension award, the suitability of employment offered in Vancouver, receipt of vocational rehabilitation benefits, failure to hold a site visit during the hearing, allegations of bias against the Tribunal, failure of the Tribunal to hold a hearing de novo, and new issues related to dental expense reimbursement, payment under the collective agreement, and payment of relocation expenses. It should be said that the petitioner expresses extreme frustration with the compensation system and asks this court for unacceptably broad relief such as to order systemic remedies to, for example, “…[make] the work place safe” at Canada Post and restore the petitioner’s credit rating. The petitioner prepared an exhaustive brief to the court, which has been thoroughly reviewed in the course of preparing this judgment.

[4] The judicial review was held over three days in December 2006, when it became apparent that the interpretation of s. 100 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 (“Act”) and Workers’ Compensation Board (“Board”) policy #100.40-100.70 were at issue. The petitioner had not appealed to WCAT or sought judicial review from the decision on costs of the Appeal Division of the Board dated September 2, 2004 (Decision #2004-0010). Although WCAT had replaced the Appeal Division as the appeal tribunal as of March 3, 2003, it is separate and independent from the Board. The Appeal Division continued to have jurisdiction over uncompleted proceedings and reconsidered its earlier decision (Decision #2003-0558) to award costs on September 2, 2004 (Decision #2004-0010). The Appeal Division denied the petitioner’s legal costs. WCAT had also denied costs in the final decision. The parties consented to add the Board as a party to this proceeding and the Board presented its argument with respect to costs with opportunity for reply to other parties in June 2007.

[5] WCAT’s participation in this judicial proceeding was circumscribed to establishing that the Tribunal acted within its jurisdiction, addressing the standard of review, and explaining the record by showing that the final decision was not patently unreasonable (CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, 62 D.L.R. (4th) 437; B.C.G.E.U. v. Industrial Relations Council (1988), 26 B.C.L.R. (2d) 145, 32 Admin. L.R. 78 (C.A.); Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244, 254 D.L.R. (4th) 111; Harris v. British Columbia (Workers’ Compensation Appeal Tribunal), 2004 BCSC 1618; Basura v. British Columbia (Workers’ Compensation Appeal Board) et al., 2005 BCSC 407 (“Basura”); Wu v. Workers’ Compensation Appeal Tribunal, 2005 BCSC 1449 (“Wu”); Wyant v. British Columbia (Workers’ Compensation Board) et al., 2006 BCSC 680 (“Wyant”); Albert v. British Columbia (Workers’ Compensation Appeal Tribunal), 2006 BCSC 838 (“Albert”)). The Tribunal did not go beyond this role and was very helpful to this Court.

Background

[6] The history of this matter is complicated because of the practice of piecemeal decision making on the part of the Board, leading to multiple appeals of different aspects of a claim at different times. This problem arose initially because the petitioner’s claim was denied until he was ultimately successful at the Appeal Division in Decision #2002-0292, after which other aspects of his claim went back to the Board for consideration, each decision then forming the basis for a new appeal. The situation was exacerbated by the evolving condition of the petitioner and changes to the appeal structure within workers’ compensation in the middle of the petitioner’s appeal process. I have confined the description of background information to facts pertinent to this judicial review and have deleted other information related to issues that have not proceeded before this Court. Pertinent information relevant to WCAT’s decision on specific issues will be canvassed as necessary within consideration of each issue.

[7] The petitioner was a full-time employee of Canada Post when he transferred from an inside clerk position in Vancouver to an outside letter carrier position in Prince Rupert in 1998. The petitioner had been delivering mail on foot for just over two months when he injured his left knee while making deliveries on August 10, 1998. He managed to continue working for the remainder of the week, but was in increasing discomfort. The injury was reported to his employer on August 14, 1998. The injury was a left knee strain, which aggravated pre-existing but asymptomatic osteoarthritis.

[8] The petitioner’s claim was initially denied in February 1999. An appeal to the Workers’ Compensation Review Board (“Review Board”) was denied in May 2001, two years and two months after the initial denial. In the meantime, the petitioner had taken stress leave, underwent two surgeries on the knee, received injections into the knee joint, and was offered alternative work in Vancouver without relocation assistance. When the petitioner declined the offer of alternative work in Vancouver, he was released from his employment for “incapacity” effective September 1999. The petitioner’s appeal to the Appeal Division of the Board was successful on February 2, 2002 (Appeal Division Decision #2002-0292), three years after the initial denial. The Appeal Division accepted that the August 10, 1998 knee injury arose out of, and in the course of, employment and aggravated his pre-existing arthritis.

[9] In implementation of Appeal Division Decision #2002-0292, case managers decided in June 2002 that the petitioner was entitled to temporary disability benefits to March 19, 2000, but not thereafter because the petitioner’s condition was no longer temporary as he had achieved maximum medical recovery and would be left with permanent restrictions. A further period of temporary benefits was allowed effective October 2001, when the plaintiff underwent his second surgery; however, because he was not employed, no wage loss benefits were payable. This decision was reviewed and confirmed in July 2002. The petitioner appealed.

[10] In June 2002, a case manager decided that physiotherapy should be paid up to June 20, 2002, but not thereafter. The petitioner appealed this decision.

[11] In December 2002, the petitioner applied for compensation for emotional stress, anxiety, and depression. His physician described in July 2003 that the petitioner suffered from a long term psychiatric disorder characterized by delusional thinking with grandiose and persecutorial ideation. In October 2003, a medical advisor of the Board opined that it was unlikely that the petitioner’s psychological issues were related to the knee injury. In reliance upon this opinion, a case manager decided that the psychological condition was not causally related to the 1998 compensable knee injury. The petitioner appealed to the Review Division. On April 15, 2004, the Review Division confirmed that the psychological condition was not causally related to the knee injury and declined to reimburse the petitioner’s legal expenses based upon policy #100.40 of the Rehabilitation Services & Claims Manual II (“RSCM”).

[12] In April 2003, the Board decided that it would not pay for more physiotherapy as requested in February 2003 because of a lack of medical evidence to support need. The petitioner requested reconsideration of this decision and also appealed the decision to the Review Division under the new appeals structure. The reconsideration of September 22, 2003 resulted in no change to the decision. This decision was appealed to the Review Division. The first appeal on this issue was heard and denied by the Review Division on September 26, 2003. The appeal of the reconsideration was denied in February 2004 for lack of jurisdiction. At this time, the Review Division also denied the petitioner’s request for reimbursement of legal expenses based upon policy #100.40 of the RSCM. Both of these Review Division decisions were appealed to WCAT.

[13] On March 3, 2003, the Act was amended, replacing the Appeal Division and Review Division with WCAT. Any appeals not considered by the Review Division prior to that date were to be heard by WCAT under the transition provisions (Workers Compensation Amendment Act (No. 2), 2002, S.B.C. 2002, c. 66, s. 38(1)). The appeals of the decision on temporary disability benefits of June 2002 and denial of physiotherapy of June 2002, not having been considered by a Review Division, went to WCAT. The new appeal structure included review of Board decisions by a review officer within the new Review Division with appeal of a Review Division decision to WCAT. On this basis, the petitioner appealed to WCAT from the decision on physiotherapy of September 2003 and February 2004, the denial of psychological disability in April 2004, and the denial of reimbursement of legal expenses of February and April 2004. These appeals were not heard until January 2005, more than six years after the initial claim.

[14] A WCAT panel was assigned to hear the appeals on August 11, 2004. On August 20, 2004, the vice chair, who had been assigned to hear the petitioner’s appeals, determined that the appeals should proceed by oral hearing over one day. At that time, the Tribunal described the matter as “procedurally complex”. A request to subpoena representatives of Canada Post to establish why the employer contested the claim so as to cause delay, stress, and anxiety, and as related to “termination issues”, was denied as immaterial. A request that Canada Post produce the petitioner’s personnel and medical files was also denied as speculative. The vice chair offered to review these decisions during the course of the hearing as necessary.

[15] The hearing before WCAT occurred over three days in January, February and April 2005. The petitioner and Canada Post were represented by legal counsel. After two days of hearing, WCAT issued a decision following reconsideration of its August 20, 2004 decision not to issue subpoenas or order production of documents. The Tribunal stated that the issue in this case was whether the alternative work offered by Canada Post was suitable and reasonably available to the petitioner: the accommodation issue (not in issue here). On this basis, the Tribunal decided that Canada Post’s motivation in presenting the offer of accommodation was irrelevant to determination of the matter at hand and declined to issue subpoenas as requested. With respect to the request for production of documents, the Tribunal decided that the request for personnel and medical files of the petitioner was too broad and irrelevant to the accommodation issue.

[16] WCAT rendered its decision on these appeals on July 14, 2005 after obtaining two extensions of time to make a decision due to the complexity of the case.

The WCAT Final Decision

[17] In lengthy reasons, WCAT decided the appeals of seven decisions, five of which are at issue on this judicial review. These are the June 2002 decisions related to temporary benefit duration and physiotherapy benefits, the September 2003 and February 2004 decisions related to physiotherapy, and the April 2004 denial of psychological disability benefits. WCAT confirmed the following decisions: the decision not to pay for physiotherapy beyond June 20, 2002; the decision that the petitioner’s condition remained plateaued in January 2002 and that he was not entitled to physiotherapy in February 2003; the refusal to re-open the physiotherapy issue; and the decision that the petitioner’s psychological condition was not causally related to the knee injury. WCAT decided that the petitioner’s compensable condition plateaued effective March 19, 2000, such that he was then no longer eligible for temporary wage loss benefits. WCAT held that no interest was payable on retroactive payments and denied the request for payment of legal expenses, except for the cost of obtaining medical reports.

Statutory Framework

[18] The Act establishes a comprehensive no-fault insurance scheme in which workers injured in the course of employment are compensated by the Board through funds acquired solely from employers: the accident fund. Under the new appeals framework, an internal Board review body, the Review Division, considers decisions of the Board. Decisions of the Review Division are subject to appeal to WCAT, which is an external independent appellate body and the final level of appeal for most decisions of the Board. The Board is statutorily required to comply with WCAT final decisions. The Act contains a privative clause in s. 255, which provides that a decision of WCAT is final and conclusive and is not open to question or review in any court.

[19] By s. 245.1 of the Act, certain provisions of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (“ATA”), including s. 58 that establishes the standard of review if a tribunal’s enabling legislation has a privative clause, apply to WCAT. Section 59 of the ATA, which establishes the standard of review if there is no privative clause, does not apply to WCAT.

[20] Employees of Canada Post are federal employees within the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (“GECA”), which provides compensation for injured federal employees pursuant to contractual arrangements between the Government of Canada and provincial workers’ compensation boards at the same rate and under the same conditions as under the Act. Section 4(2) of the GECA says that federal employees are entitled to receive compensation at the same rate and under the same conditions as provided by the laws of the province where the employee is employed. Section 4(3) GECA says:

(3) Compensation under subsection (1) shall be determined by

(a) the same board, officers or authority as is or are established by the law of the province for determining compensation for workmen and dependants of deceased workmen employed by persons other than Her Majesty; ...

[21] Compensation payable to Canada Post employees in British Columbia is determined by British Columbia workers’ compensation bodies, including WCAT (Canada Post Corp. v. Smith (1998), 40 O.R. (3d) 97 at 101, 159 D.L.R. (4th) 283, (C.A.) (“Smith” cited to O.R.)). The boundaries of compensation for federal employees is, therefore, set out in provincial legislation for injured workers and GECA is the statutory vehicle for transferring authority over compensation issues (Smith at 111). There are no administrative tribunals established under GECA and there is no privative clause. Compensation awarded to an employee by the provincial authority is to be paid to the employee pursuant to s. 4(5) which says:

(5) Any compensation awarded to an employee or the dependants of a deceased employee by a board, officer, authority or court, under the authority of this Act, shall be paid to the employee or dependants or to such person as the board, officer, authority or court may direct, and the board, officer, authority or court has the same jurisdiction to award costs as is conferred in cases between private parties by the law of the province where the employee is usually employed.

Compensation or costs awarded are paid from the Consolidated Revenue Fund (GECA, s. 4(6)).

Standard of Review

[22] The ATA was in full force and effect when the petition was filed in this matter and applies to this judicial review to the extent described in s. 245.1 of the Act (Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker, 2006 BCSC 43, 42 Admin. L.R. (4th) 266 at para. 25). Therefore, if there is a privative clause, s. 58 of the ATA applies. The question is whether GECA incorporates the privative clause in the Act. If it does not, then the ATA does not apply because s. 59 of ATA, which defines the standard of review when there is not a privative clause, does not apply to an appeal tribunal under the Act pursuant to s. 245.1. In that event, the standard is to be determined under the common law pragmatic and functional approach.

[23] The applicability of a provincial privative clause within the context of GECA arose in Canada Post Corp. v. Connolly, 2006 NSCA 3, 240 N.S.R. (2d) 105 (“Connolly”). In that case, the court considered whether a privative clause in the provincial appeals mechanism adopted through GECA, applied when GECA did not have a privative clause itself. Cromwell J.A. reviewed previous decisions that had considered this issue and distinguished those that concerned the application of the provincial privative clause to the provincial tribunal’s interpretation of GECA (Canada Post Corp. v. Johnson (1993), 127 N.S.R. (2d) 207 (S.C.), Smith, and Canada Post Corp. v. Saskatchewan (Workers’ Compensation Board) (1998), 174 Sask. R. 285, 13 Admin. L.R. (3d) 243 (Q.B.)) with those that concerned application of provincial law (Stene v. Saskatchewan (Workers’ Compensation Board), 2002 SKQB 66). In the former situation, the lack of a privative clause in GECA was a factor to consider in the pragmatic and functional common law approach to determination of the standard of review. In the latter situation, including Connolly, the provincial privative clause was found to apply. Further, Cromwell J.A. found it difficult to understand why, if GECA incorporated rights of appeal provided for under provincial legislation, it did not also incorporate provisions governing the scope of those appeals.

[24] All of these cases involved application of the common law pragmatic and functional approach to the determination of the standard of review that incorporates the presence or absence of a privative clause as the first of four contextual factors to consider. There was not the question, as here, as to whether a statutory standard of review applied because of the existence of a privative clause. Here, the question is whether s. 58 of the ATA applies through s. 245.1 of the Act, or whether it is necessary to perform the common law analysis.

[25] In my view, GECA’s incorporation of the appeal mechanisms of the Act in s. 4(3) for determination of compensation issues and s. 4(5) for awards of costs includes the scope of appeals as defined by the privative clause in s. 255 of the Act. In Canada Post Corp. v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2004] O.J. No. 63 at para. 7 (S.C.) (QL), the court pointed out that it would be illogical to include a privative clause in GECA itself because the legislation contains no adjudicative body to which the privative clause would apply. Connolly, at para. 42, found that the incorporation of the right of appeal from WCAT to the court also incorporated the privative protection for the Tribunal’s decision. The privative protection in s. 255 of the Act covers “any decision or action” of WCAT. Interpretation of GECA, as opposed to interpretation of provincial legislation, should not undermine the intended scope of protection for the Tribunal incorporated by GECA through ss. 4(3) and 4(5).

[26] Therefore, there being an incorporated privative clause, s. 58 of the ATA defines the standard of review. Section 58(2)(a) and (b) of the ATA provides:

(2) In a judicial review proceeding relating to expert tribunals under subsection (1)

(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,

(b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly…

[27] Thus, if the Tribunal had exclusive jurisdiction over the matter in dispute, the standard of review is patent unreasonableness.

[28] In United Brotherhood of Carpenters and Joiners of America, Locals 527, 1370, 1598, 1907 and 2397 v. Labour Relations Board, 2006 BCCA 364, 272 D.L.R. (4th) 253 at para. 46, the Court of Appeal said that the pragmatic and functional approach should be applied to the determination of whether a tribunal’s decision was within its exclusive jurisdiction within the meaning of s. 58(2)(a). This involves reference to four factors: the presence or absence of a privative clause, the tribunal’s expertise, the purpose of the act as a whole and any particular provisions, and the nature of the problem. This approach was applied recently in Hospital Employees’ Union v. British Columbia (Labour Relations Board), 2006 BCSC 1334, 126 C.L.R.B.R. (2d) 53 at paras. 62-80.

[29] WCAT is covered by a strong privative clause in s. 255 of the Act. The expertise of WCAT is demonstrated in its composition, tenure, and powers such that other courts have accepted related expertise in workers compensation matters based upon statutory provisions (Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890 at para. 38, 149 D.L.R. (4th) 577; Douglas Davidson v. British Columbia (Workers’ Compensation Board) et al., 2003 BCSC 1147 at para. 42). See also Daniel v. (British Columbia) Workers’ Compensation Appeal Tribunal, 2007 BCSC 1005; Basura; Wu; Wyant; and Albert. WCAT is responsible for appeals in regards to the comprehensive scheme of the Act to provide compensation for workers’ injuries under delegation from GECA. In this regard, WCAT must consider and apply Board policies that are applicable (Act, s. 250(2)). The nature of the questions here as they relate to benefits and compensation is within the essential fact intensive discretion under the scheme.

[30] The Tribunal has exclusive jurisdiction over issues related to compensation and benefits so that the standard of review under s. 58(2)(a) of the ATA is patent unreasonableness. This relates to questions about temporary disability benefits, the provision of physiotherapy, the denial of psychological disability, the provision of interest for retroactive payment, and costs and expenses.

[31] Questions related to production of documents, issuance of subpoenas, and delay must be decided within s. 58(2)(b) of the ATA having regard to whether, in all of the circumstances, the Tribunal acted fairly.

[32] If I am in error with respect to incorporation of the privative clause and the application of the ATA, then the determination of the standard of review falls to be considered according to the common law pragmatic and functional approach. There is then an overlap between the test for exclusive jurisdiction under s. 58(2)(a) of the ATA and the common law pragmatic and functional approach. Based upon the analysis in paragraph 28, the common law standard for review is also one of patent unreasonableness. For questions of natural justice, the common law test is one of fairness (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193).

[33] The standard of review of patent unreasonableness applies to the result and not to the reasons leading to the result so that if a rational basis can be found for the decision, it should not be disturbed simply because of defects in the tribunal’s reasoning (Kovach v. British Columbia (Workers’ Compensation Board), [1999] 1 W.W.R. 498 at 512, 52 B.C.L.R. (3d) 98 (C.A.), Donald J.A. dissenting). Section 58(3) of the ATA states that a decision is patently unreasonable if discretion is exercised arbitrarily, or is based entirely or predominantly upon irrelevant factors, or fails to take statutory requirements into account. The decision must be openly, evidently, clearly unreasonable or there must be no evidence to support the findings (see Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80, 46 B.C.L.R. (4th) 77 at para. 33).

Review of Decisions on the Standard of Patent Unreasonableness

(a) Review of WCAT Decision on the Duration of Temporary Benefits

[34] WCAT decided that the petitioner was no longer entitled to receive temporary wage loss benefits under ss. 29 or 50 of the Act after March 19, 2000 because his compensable condition had stabilized or plateaued as at that date and his disability was no longer temporary. WCAT applied Board policy that states that a condition is considered permanent when it has definitely stabilized. Generally, if there is no change expected over twelve months, a condition is permanent. WCAT considered medical evidence that by March 2000 there was unlikely to be significant change. Although there had been further surgery in October 2001, WCAT found that the compensable condition had stabilized by March 2000 because medical charts noted no significant change between January and March 2000, and no further medical visits occurred until May 2001. This was so despite the fact that the petitioner received injections for symptoms during this time. WCAT concluded that this did not change the underlying condition. This decision was based upon evidence and cannot otherwise be said to be patently unreasonable. It might be noted that the permanent condition renders the petitioner eligible for vocational and rehabilitation benefits and a pension, which has yet to be determined.

(b) Review of WCAT Decision on Physiotherapy Benefits

[35] The petitioner has requested reconsideration of entitlement to physiotherapy treatments after June 20, 2002. WCAT considered that the petitioner’s condition was permanent after the surgery of October 2001, and that physiotherapy is intended to relieve from injury rather than provide palliative relief on a temporary basis from permanent conditions. WCAT also reviewed s. 21 of the Act which empowers the Board to determine the nature, duration and quantum of health care benefits to relieve from the effects of the injury. According to Board policy, physiotherapy prescribed by a physician may be continued for a maximum of eight weeks. The petitioner received benefits for at least sixty physiotherapy treatments over a period longer than eight weeks. WCAT considered that prescriptions for physiotherapy from a physician are not sufficient in themselves to extend benefits. In this case, the petitioner’s physician had stated that physiotherapy was required indefinitely. However, WCAT concluded that there was “…little, if any, medical explanation…” as to why benefits should be extended beyond what had already been granted. The policy further provides that if an extension is sought, prior authorization should be obtained from a Board Medical Advisor. Although not stated in WCAT’s reasons, the record establishes that the petitioner did not seek such authorization. WCAT concluded that, for these same reasons, the petitioner was not entitled to physiotherapy benefits in February 2003.

[36] Compensation and benefits are defined under the Act and Board policy to be determined by the Board. They are not unlimited and not determined at the discretion of the attending physician. The petitioner basically argued that the benefit provided is insufficient and should be at the physician’s discretion. This simply is not the scheme of the Act. It is not for this court to define the extent of the benefits. In this case, WCAT applied Board policy and the Act based upon the evidence before it and determined that benefits are limited and that there was no reason to extend them. This decision was based upon evidence and interpretation of policy within the discretion of WCAT. This decision is not patently unreasonable.

(c) Review of WCAT Decision on Psychological Injury

[37] The petitioner sought reconsideration by this Court of the decision not to allow compensation for psychological injury. WCAT concluded that the petitioner’s psychological condition was not causally related to his knee injury or to aggravation of labour relations as a result of the knee injury. WCAT considered whether the employment or injury was a significant contributing factor or contributed to a material degree to the psychological condition. It was not argued that this causal test was in error. The issue here is whether there is a link between the knee injury and the psychological condition either directly or through aggravation of the labour relations situation. There was no claim for pure psychological injury before the Tribunal.

[38] In 1999, the petitioner’s then physician reported that the petitioner suffered strain from unwarranted stress and pressure placed upon him from the employer, including the threat of dismissal, because there was a long delay in obtaining an orthopaedic consult and debridement and orthoscopy of the knee injury. In 2003, the petitioner’s physician described that the petitioner suffered from “…long-term psychiatric disorder that is characterized by delusional thinking with grandiose and persecutorial ideation…” that disabled him from any employment in 2003 and from any employment ever with Canada Post. A medical advisor with the Board stated in 2003 that there was “…no medical evidence on file to support the worker’s stress, anxiety and depression are likely related to the injury accepted under this claim”. In 2005, the petitioner’s physician stated that this disorder was “…significantly and materially related to the situational stresses arising from his left knee disability and its associated surgeries and with the ongoing multi-year conflict with Workers’ Compensation Board and Canada Post”.

[39] WCAT concluded that there was “…no medical evidence indicating that the compensable knee injury itself had caused a psychological injury”. The 2005 report from the petitioner’s attending physician was discounted because the conclusion was “…not the focus of the reports prepared by the treating and examining practitioners at the time”. WCAT said that the psychological condition arose from the surrounding circumstances and not the injury per se. It went on to consider whether the knee injury was responsible for aggravating the labour relations situation between the worker and employer, thus causing the worker to suffer a psychological injury as a result. In this latter context, WCAT reviewed the past employment relations to determine whether workplace circumstances or events involved unusual stimuli.

[40] I conclude that it was not patently unreasonable for WCAT to find that there was no evidence that the knee injury caused a psychological condition. The focus of medical reports was on the situational stresses as a result of the knee injury. It was this conclusion that led WCAT to enquire about employment relations between the petitioner and Canada Post to determine whether “unusual stimuli” in the workplace arising from the knee injury caused psychological injury. Because WCAT concluded that employment relations were not unusual, there was no need to consider the causal relationship.

[41] WCAT found that there had been performance related issues before the injury that caused friction between the petitioner and Canada Post. Subsequent disciplinary meetings were found not to have been focused on the knee injury but on performance. Disciplinary reports were to have been placed in the petitioner’s personnel file with Canada Post. Although there was a great deal of labour relations strife in this case, it was not found to be unusual in the realm of labour relations generally. It was not found to have crossed over from normal labour relations to harassment even though the petitioner felt upset, anxious, worried and stressed from the labour situation.

[42] This finding was based upon the evidence and it is not open to this court to re-evaluate the evidence to determine whether there should be a different conclusion. This court cannot re-assess the labour situation to determine whether it was unusual or not so as to cause a psychological condition. There is, however, the issue that the petitioner was not allowed access to his personnel file and was not permitted to subpoena certain witnesses so as to challenge evidence that labour relations did not cross over into harassment or that the petitioner was not singled out for different treatment. This will be considered below.

(d) Review of WCAT Decision on Interest Payment

[43] The petitioner asks this Court to reconsider interest entitlement on retroactive amounts that he was found to be entitled to as a result of the WCAT decision. WCAT decided that interest was not payable because it was a discretionary matter governed by Board policy that required there to have been a blatant Board error that necessitated the retroactive payment. WCAT found no such error in this case.

[44] The Act provides for interest to be payable in certain situations under ss. 19(2)(c) and 258(6). In all other situations, the payment of interest is at the discretion of the Board and subject to Board policy. In this case, WCAT applied Board policy that required there to have been blatant error that necessitated the retroactive payment before interest was payable. There was no blatant error when the exercise of judgment with reasons was overturned following a re-weighing of evidence on appeal. Neither the policy nor the factual finding that there was no such error was seriously challenged. The decision is not patently unreasonable.

(e) Review of WCAT Decision on Costs

[45] The petition states that an order is sought “…Directing WCAT to reimburse the petitioner’s legal costs for this appeal and for this judicial review”. The basis for the order is stated in the facts: none of the petitioner’s legal fees, disbursements and taxes have been paid by the employer, Canada Post, or by the Board through the review and appeal system. The legal issue is described as an error of WCAT in refusing to order the reimbursement by either the Board or the employer of legal fees, disbursements and costs since August 1998, including the costs of preparing affidavits and the costs of employing a court reporter. I understand that the petition seeks an order for payment for costs from either Canada Post or the Board, not WCAT itself.

[46] The petition is confusing as to what exactly is before this court upon judicial review. There is only one decision being reviewed, WCAT-2005-03737-RB. The matter of costs from the date of the injury, August 1998, to February 4, 2002, was dealt with in previous proceedings before the Appeal Divisions (Decisions #2002-0292, #2003-0558, and #2004-0010). As stated above, the petitioner has not appealed to WCAT or sought judicial review from the final decision on costs of the Appeal Division of the Board dated September 2, 2004 (Decision #2004-0010). The petitioner affirms in argument that he is not appealing from that decision and is not, therefore, challenging the interpretation of s. 4(5) of GECA in this judicial review.

[47] WCAT considered that the petitioner sought reimbursement of legal costs solely under s. 7 of the Workers Compensation Act Appeal Regulation, B.C. Reg. 321/2002 (“Appeal Regulation”). The Tribunal did not make a specific finding on whether the petitioner was entitled to reimbursement under s. 6 of the Appeal Regulation, although that issue was raised in the original argument before the Appeal Division, which was repeated by the petitioner before WCAT and was argued by Canada Post at the WCAT hearing. The main difference between the two sections is that s. 7 concerns payment of “expenses” by the Board and s. 6 concerns “costs” awarded as between the parties. WCAT denied the worker’s request for payment of legal expenses under s. 7 of the Appeal Regulation because pursuant to s. 100 of the Act and Board policy item #100.40 of the RSCM, WCAT did not have authority to order the Board to pay a party’s legal expenses. WCAT adopted the reasoning and conclusion in WCAT Decision #2004-06308.

[48] The petitioner does not confine his request for payment of legal costs in this petition to the Board, but also seeks payment of his legal costs from his employer, Canada Post. Although argued before WCAT, no specific finding was made as to whether the employer should pay legal costs under s. 6 of the Appeal Regulation. It provides:

6 The appeal tribunal may award costs related to an appeal under Part 4 of the Act to a party only if the appeal tribunal determines that

(a) another party caused costs to be incurred without reasonable cause, or caused costs to be wasted through delay, neglect or some other fault,

(b) the conduct of another party has been vexatious, frivolous or abusive, or

[49] The Board argues s. 6 of the Appeal Regulation and the applicability of RSCM Policy #100.70 before this Court. Policy #100.70 says:

#100.70 The Awarding of Costs

The provisions in policy item #100.00 to policy item #100.60 relate to the payment of expenses by the Board. An order for the payment of costs by one party to another under section 100 of the Act is a separate matter, and is an alternative that may be considered in an appropriate case.

Section 100 provides that “The Board may award a sum it considers reasonable to the successful party to a contested claim for compensation or to any other contested matter to meet the expenses the party has been put to by reason of or incidental to the contest, and an order of the Board for the payment by an employer or by a worker of a sum so awarded, when filed in the manner provided for the filing of certificates by section 45(2), becomes a judgment of the court in which it is filed and may be enforced accordingly.”

A “contested claim”, for the purposes of section 100, is one in respect of which there has been a review by the Review Division by the worker or the employer. An appeal to a Medical Review Panel might amount to a “contest” of a claim but it is unlikely that a question of costs would arise in such a case.

An award under section 100 might be made on a review but only in unusual cases. The section is limited to cases where the worker or employer abuses their respective rights under the Act. For instance, the worker or employer may put the opposite party to the expense of an appeal for no good reason. In other words, it may appear that a review was pursued simply because the right to request a review existed and without any substantial grounds on which the position could be argued.

An award will not likely be made under section 100 in favour of a successful appellant. The section requires that the expenses in respect of which the award is made be “…by reason of or incidental to the contest, …” Since the appeal will be proceeded with and resolved whether or not it is opposed by the other party, it cannot normally be said that the expenses of the appellant are due to the other party’s “contest” of the review. Where the review is not opposed by the other party, the reasons for not making an award become even stronger.

[50] Whether the petitioner is entitled to reimbursement of legal costs under s. 6 of the Appeal Regulation necessarily involves consideration and determination of facts and consideration of whether an award should be made under s. 100 of the Act because of the unusual nature of the case within the meaning of Policy #100.70. It is apparent that this matter has been intensely contested throughout, has been plagued by systemic change, and is complex. However, the determination of s. 6 costs is beyond this Court upon judicial review in the absence of a finding by WCAT. This is especially so when WCAT has not determined whether to apply Policy #100.70 because it is patently unreasonable within the meaning of s. 251(1) of the Act. In the event that WCAT decides not to apply a policy of the Board, a mechanism is provided in s. 251(2) for referral to the chair. This process should take place before judicial review. The matter of whether the employer, Canada Post, should pay legal costs under s. 6 of the Appeal Regulation is referred back to WCAT for determination.

[51] The issue before this court concerns the interpretation of s. 100 of the Act in light of a change to the legislation in s. 250(2) that requires WCAT to apply policies of the Board. More particularly, the question is whether Policy #100.40 and s. 7 of the Appeal Regulation, which deny payment of fees and expenses of lawyers and other advocates by the Board, must apply to deny reimbursement in this case. There then are the questions about reimbursement of expenses related to a court reporter and preparation of affidavits.

[52] Section 100 of the Act says:

Costs

100 The Board may award a sum it considers reasonable to the successful party to a contested claim for compensation or to any other contested matter to meet the expenses the party has been put to by reason of or incidental to the contest, and an order of the Board for the payment by an employer or by a worker of a sum so awarded, when filed in the manner provided for the filing of certificates by section 45(2), becomes a judgment of the court in which it is filed and may be enforced accordingly.

[53] This section was considered in Van Unen v. W. C. B., 2001 BCCA 262, 87 B.C.L.R. (3d) 277, leave to appeal to S.C.C. refused, 28540 (October 4, 2001) (“Van Unen”). The court found that the discretion to award costs in s. 100 was not fettered by application of non-binding policy that allowed for payment of legal expenses only in exceptional cases involving unusual or extraordinary circumstances.

[54] In 2003, however, the Act was changed to make policies of the Board binding on WCAT. Section 250(2) of the Act states:

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.

[55] Section 251(1) and (2) provide:

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.

(2) If, in a appeal, the appeal tribunal considers that a policy of the board of directors should not be applied, that issue must be referred to the chair and the appeal proceedings must be suspended until the chair makes a determination under subsection (4) or the board of directors makes a determination under subsection (6), as the case may be.

[56] WCAT applied WCAT Decision #2004-06308, which was summarized as follows:

A brief summary of WCAT Decision #2004-06308 appearing on the WCAT website at http://www.wcat.bc.ca/research/noteworthy decisions.htm states:

In relation to a Workers’ Compensation Board (Board) matter or a Review Division proceeding, and pursuant to section 100 of the Workers Compensation Act (Act) and Board policy item #100.40 of the Rehabilitation Services and Claims Manual, Volumes I and II, neither the Review Division nor WCAT have the authority to order the Board to pay a party’s legal expenses. The 2001 decision of the British Columbia Court of Appeal in Van Unen v. British Columbia (Worker’ [sic] Compensation Board) on this same issue no longer applies to the current statutory scheme.

I adopt the reasoning and conclusion set out in that decision, and I deny the worker’s request for payment of legal costs.

[57] That decision had re-examined the issue of legal fees in the context of changes to the Act. The Tribunal considered the award of legal costs in relation to an appeal to WCAT and in relation to matters brought for review from the Board if under appeal at WCAT. The former is governed by s. 7 of the Appeal Regulations that says:

7(1) ubject to subsection (2), the appeal tribunal may order the Board to reimburse a party to an appeal under Part 4 of the Act for any of the following kinds of expenses incurred by that party:

(a) the xpenses associated with attending an oral hearing or otherwise participating in a proceeding, if the party is required by the appeal tribunal to travel to the hearing or other proceeding;

(b) the expenses associated with obtaining or producing evidence submitted to the appeal tribunal;

(2) The appeal tribunal may not order the Board to reimburse a party’s expenses arising from a person representing the party or the attendance of a representative of the party at a hearing or other proceeding related to the appeal.

[58] Policy #100.40 states:

#100.40 Fees and Expenses of Lawyers and Other Advocates

No expenses are payable to or for any advocate. Nor does the Board pay fees for legal advice or advocacy in connection with a claim for compensation. (41) The Board will not pay the legal costs of a claimant or employer in connection with court proceedings to challenge a Board decision beyond what it may become subject to pay following the court’s decision under the general law of costs.

[59] In WCAT Decision #2004-06308, the Tribunal considered that the approach in Van Unen was based upon the prior Act and the common law prohibition against fettering a statutory discretion. It then reviewed the statutory mechanism for failure to follow policy as described in s. 251 of the Act and considered that the policy was now a rule rather than a guideline. Because WCAT is a statutory authority as defined by legislation, the legislative intent to apply Board policy prevailed. The Tribunal also concluded, without substantive reasons, that the policy was not patently unreasonable so to lead to application of the statutory mechanism under s. 251(2).

[60] Van Unen remains valid law for its interpretation that s. 100 of the Act applies to payment of expenses not only by employers and workers but also by the Board from the accident fund. The question in this case ultimately becomes whether the policy that no legal costs will ever be paid is patently unreasonable. This question was addressed by the Board in its submissions as it related to Policy #100.70, but I consider the arguments equally applicable to Policy #100.40.

[61] Section 251(1) applies the common law ‘patently unreasonable’ standard to Board policy, indicating that the legislature intended the Board to have a good deal of latitude in the formulation of policy to reflect the purposes of the Act. This is reinforced by the statutory mechanism in s. 251 that refers the matter back to the Board for the ultimate determination of whether a policy is patently unreasonable. The legislature has clearly given the Board authority to interpret its own legislation and to administer the Act within its own policies.

[62] Section 94 of the Act establishes a workers’ advisory system that is intended to provide funded assistance to claimants within the workers’ compensation model that provides no-fault entitlement to compensation benefits without the necessity of court proceedings. Section 94(2) provides:

(2) a workers’ adviser must

(a) give assistance to a worker or to a dependant having a claim under this Act, except where the workers’ adviser thinks the claim has no merit,

(b) on claims matters, communicate with or appear before the Board, and the appeal tribunal on behalf of a worker or dependant where the adviser considers assistance is required, and

(c) advise workers and dependants with regard to the interpretation and administration of this Act or any regulations or decisions made under it.

[63] The Board argues that the Act is a complete Code in which the legislature has turned its mind to representation by making specific provision for it in s. 94. The Board asserts that the employers have already funded legal representation for workers through the formation of the workers’ advisory system. In light of this, the Board says its interpretation of s. 100 as articulated in Policy #100.40 or #100.70 is not patently unreasonable.

[64] In interpreting s. 94(2), the Board says that the workers’ advisor acts upon request of the worker and not pursuant to a mandatory requirement to provide assistance to the worker. There is no mechanism under which a workers’ advisor is informed of a claim unless contacted by a worker. There was no evidence that a workers’ advisor ever evaluated the petitioner’s claim to assess merit or provided any advice to the petitioner. However, the petitioner admits that he made the choice not to seek the advice of the workers’ advisor.

[65] In the circumstance here, where a worker has chosen not to use the funded advisory services, I agree that it is not patently unreasonable to deny payment of fees for other representation according to policy even though it is apparent that professional assistance was required in this case. However, this is within the mandatory context of s. 94(2) wherein a workers’ advisor must give assistance to a worker having a claim under the Act. The scheme envisages that every claimant shall have the benefit of the assistance, communication skills, and advice of a workers’ advisor. The advisor is allowed access to the complete claims files of the worker provided that the information remains confidential (Act, s. 95(3)). The scheme for funding the workers’ advisor from the accident fund (s. 94(1.3)) implies that adequate advisory services must be provided to meet the mandatory requirement in s. 94(2) in order for a policy denying reimbursement for other representation to be patently reasonable. Whether this has occurred or not is beyond consideration on the facts of this case. The statute clearly provides for a system of mandatory representation and it is not for this court to say in this judicial review that there should be another entitlement when the legislature has clearly given authority to the Board to administer and interpret the Act through binding policy.

[66] Policy #100.40 and s. 7 of the Appeal Regulation apply to deny reimbursement of costs for legal representation payable by the Board in this case. Whether representation costs are payable by the employer pursuant to s. 6 of the Appeal Regulation is referred back to WCAT for determination.

[67] With respect to reimbursement for the costs of a court reporter, WCAT noted in its reasons that the official record of a proceeding before WCAT is the audiotape recording. Section 35 of the ATA provides that a tape recording must be considered a correct record of a proceeding. The petitioner was advised of this when he requested permission to have a court reporter present. WCAT allowed a court reporter to be present upon the understanding that it was to be at the expense of the petitioner. A copy of the official audiotape recording was made available to the petitioner. It was not patently unreasonable to deny reimbursement for a court reporter in these circumstances.

[68] With respect to reimbursement for the costs of preparation of affidavits, WCAT concluded that it was not necessary to have the evidence of the petitioner, his wife, friend and co-worker given by affidavit as nothing turned on that evidence and the probative value of the evidence would have been the same if given by letter. In addition, the Tribunal found that this issue was covered by its determination on legal costs. The Tribunal has discretion to receive and accept information that it considers relevant whether or not the information would be admissible in a court of law (Act, s. 246.1). It is not bound by rules of evidence. Generally, reimbursement is given for written evidence if it is useful or helpful to consideration of the appeal. I conclude that it was not patently unreasonable to have denied these expenses in the circumstances.

Review of WCAT Decisions on the Standard of Fairness

(a) Review of WCAT Decisions on Procedural Issues

[69] WCAT declined to issue certain subpoenas and denied production of the petitioner’s personnel file at Canada Post. These are matters of procedural fairness to be reviewed as to whether the Tribunal acted fairly under s. 58(2)(b) of ATA.

[70] In April 2005, after two days of hearing, WCAT revisited its decision not to issue subpoenas. WCAT’s determination turned on the issue of relevance of the proposed evidence. Relevance was determined based upon the sole issue identified by the Tribunal, namely, whether the alternative work offered by Canada Post was suitable and reasonably available to the worker. This is not an issue on this appeal. However, the Tribunal isolated this as the only issue in this matter and considered whether persons requested to be subpoenaed had relevant information to the issue of accommodation that had been offered. In so doing, the Tribunal failed to consider relevance to other issues, particularly whether the labour relations environment created unusual stimuli within consideration of psychological injury.

[71] The petitioner argues at this review that he had wanted to subpoena Maureen Mowez and Kathy Norton, both employees of Canada Post with a direct relationship to the petitioner, to establish that their conduct in relation to his injury led to the stress that caused his psychological condition. This was referred to in the 1999 medical report that described stress to the petitioner as a result of strain in labour relations to the extent of a threat of dismissal as a result of delay in obtaining an orthopaedic report relative to the knee injury. The petitioner’s request before the Tribunal for Ms. Mowez was because her evidence was relevant to whether Canada Post was animated by bad faith or other improper motivation in “dealings” with the petitioner and for Ms. Norton because she had allegedly advised him to, “…[drop] his WCB claim..” so that things would go easier for him. WCAT failed to consider this request in relation to the claim for psychological injury as a result of aggravation of labour relations flowing from the knee injury. Failure to consider relevance in relation to all matters at issue, particularly given the broad nature of the claim for psychological injury, was unfair.

[72] WCAT also denied production of the petitioner’s personnel file from Canada Post, also on the basis of relevance to the accommodation issue. Canada Post candidly admits that production of the petitioner’s personnel file “should have been no problem”. It is readily apparent that the personnel file was relevant to the psychological injury issue as disciplinary meetings were reviewed in evidence with reference to notations having been made on the petitioner’s personnel file. The subject of those meetings and whether the cumulative effect of the employment situation was so unusual to amount to harassment was very much in issue in relation to whether the situation was exacerbated because of the knee injury.

[73] It was patently unreasonable and unfair for WCAT not to have considered the issuance of subpoenas and production of the petitioner’s personnel file in relation to all issues and particularly in relation to the claim for psychological injury causally related to the knee injury. It was unfair that the petitioner was disadvantaged by lack of his own personnel file to attempt to rebut the employer’s position that labour relations were not unusual as it pertained to the petitioner, especially when certain information in the file was used by the employer and referenced in the Tribunal’s findings of fact. It was also unfair that the petitioner did not have the opportunity to cross-examine the witnesses who, he said, caused him stress related to his WCB claim. In so acting, the Tribunal took the unacceptable risk that not all information that could have affected its decision was placed before it.

[74] These matters of the issuance of subpoenas and production of the petitioner’s personnel file are remitted back to the Tribunal for reconsideration as to whether there is relevance to the issue of whether the labour relations situation, as a result of the knee injury, created an unusual stimulus that was reasonably capable of causing psychological injury of causative significance to the knee injury. It may be that the Tribunal will then decide to re-open this issue only at a hearing to fairly allow the petitioner to fully present his case on this issue.

(b) Review of Delay

[75] The petitioner argues that the delay in processing his claim was an abuse of process within the meaning of Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (“Blencoe”). According to the petitioner’s written argument, the abuse complained of started with the filing of the claim on August 14, 1998. Quite frankly, it was impossible to follow the complete history of the claim from the petitioner’s account or to assess whether any delay was inordinate or who was responsible for the delay. WCAT thought that the petitioner’s delay argument dealt with the time between the filing of the various appeals subject to WCAT review and the date of the decision.

[76] The question as described in Blencoe at para. 100 is whether delay amounted to a denial of natural justice and breach of the duty of fairness. There was no suggestion in this case that any delay compromised the fairness of the hearing itself. Nor has the petitioner pointed to significant prejudice that was caused to him as a result of any delay. His basic point is that delay caused financial hardship because he was unable to obtain welfare payments while he was still technically employed at Canada Post while these proceedings continued.

[77] WCAT points out that the WCAT appeal dealt with seven decisions that dated from June 14, 2002. Petitioner’s counsel requested that six other decisions be joined. The original hearing date for the hearing of the appeals was adjourned at the request of the petitioner. There were numerous requests made during the hearing from the petitioner that resulted in delay, such as the request for subpoenas. WCAT also requested two extensions of time to complete its decision.

[78] According to Blencoe at para. 121, the petitioner must demonstrate that a delay was unacceptable to the point of being so oppressive as to taint the proceedings. Delay itself does not constitute abuse of process. The petitioner has not established sufficient details of delay and who was responsible for it such that I can conclude that the delay was inordinate or that the proceedings were rendered unfair or that the petitioner has been significantly prejudiced. Although the petitioner is self-represented, it is not up to this court to review the whole history of these matters and carry out an independent assessment of events and the responsibility for them to make a finding of inordinate delay and to then interpret the significance of that delay.

Conclusion

[79] Certain issues are remitted back to WCAT for determination as described. As results on this judicial review are mixed, there shall be no order as to costs. The employer did not seek costs in any event.

“Dillon J.”

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The Honourable Madam Justice Dillon

Citation:	*Baker v. Workers' Compensation Appeal Tribunal,*
	2007 BCSC 1517