2007 BCSC 1656 Herbaut v. British Columbia (Workers' Compensation Appeal Tribunal)

Before: The Honourable Mr. Justice Cole

Reasons for Judgment

Appearing on his own behalf	Eric Herbaut
Counsel for the Respondent	Walter A. Pylypchuk
Date and Place of Trial/Hearing:	October 26, 2007
	Vancouver, B.C.

[1] This is a petition pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, [JRPA] for an order setting aside the decision of the Workers’ Compensation Appeal Tribunal dated March 2, 2007, denying the petitioner’s application for an extension of the 30-day statutory time period to appeal a decision of a Workers’ Compensation Board review officer dated February 24, 2005.

[2] The petitioner said he was advised by his Worker’s Advisor in a letter dated November 29, 2004, not to pursue a review of the decision of the Board dated July 27, 2004. The petitioner says that constituted special circumstances and he should have been granted an extension of his time to appeal the February 24, 2005 decision of the review officer.

[3] Section 243(1) of the Workers Compensation Act, R.S.B.C. 1996, c. 492, [WCA], provides:

243 (1) A notice of appeal respecting a decision referred to in section 239 must be filed within 30 days after the decision being appealed was made.

[4] There is authority to extend the time to appeal, that is contained in s. 243(3), of the WCA, which states:

(3) On application, and where the chair is satisfied that

(a) special circumstances existed which precluded the filing of a notice of appeal within the time period required in subsection (1) or (2), and

(b) an injustice would otherwise result,

the chair may extend the time to file a notice of appeal even if the time to file has expired.

A Standard of Review

[5] In every case of judicial review, a reviewing court must first determine the appropriate standard of review by using the pragmatic and functional approach as outlined by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.

[6] In Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, McLachlin C.J. outlined the four steps of the pragmatic and functional approach at para. 26:

In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors — the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question — law, fact, or mixed law and fact. The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law.

[7] The Administrative Tribunals Act, S.B.C. 2004, c. 45 [ATA] clarifies the process in determining the standard of review.

[8] Section 58 of the ATA provides that:

58 (1) If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

(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, and

(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness.

(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(d) fails to take statutory requirements into account.

[9] Section 1 of the ATA defines privative clause as:

"privative clause" means provisions in the tribunal's enabling Act that give the tribunal exclusive and final jurisdiction to inquire into, hear and decide certain matters and questions and provide that a decision of the tribunal in respect of the matters within its jurisdiction is final and binding and not open to review in any court;

[10] Section 255 of the WCA contains a full privative clause as follows:

255 (1) Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court.

(2) Proceedings by or before the chair or appeal tribunal under this Part must not

(a) be restrained by injunction, prohibition or other process or proceeding in any court, or

(b) be removed by certiorari or otherwise into any court.

[11] I am satisfied that the Workers Compensation Appeal Tribunal [WCAT] is an expert tribunal under s. 58(1) of the ATA.

[12] In respect to jurisdiction, s. 254 of the WCA affords WCAT exclusive jurisdiction as follows:

254 The appeal tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined under this Part and to make any order permitted to be made, including the following:

(a) all appeals from review officers' decisions as permitted under section 239;

(b) all appeals from Board decisions or orders as permitted under section 240;

(d) all other matters for which the Lieutenant Governor in Council by regulation permits an appeal to the appeal tribunal under this Part.

[13] I find that WCAT was engaged in matters that fell under its exclusive jurisdiction and more particularly, the determination of time limits to file an appeal from the Workers’ Compensation Board decision according to s. 243 of the WCA. I am also satisfied that a decision about whether a notice of appeal has been filed within 30 days of a decision as required by s. 243(1), is a question of fact.

[14] Considering the privative clause in s. 255 of the WCA and that WCAT was engaged in matters that fell under its exclusive jurisdiction, I am satisfied that an appropriate standard of review in these circumstances, by operation of statute, is that of patent unreasonableness.

[15] Patent unreasonableness is further defined in s. 58(3) of the ATA that states:

(3) For the purposes of subsection (2)(a), a discretionary decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in bad faith,

(b) is exercised for an improper purpose,

(d) fails to take statutory requirements into account.

[16] Our Court of Appeal in Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80, 46 B.C.L.R. (4th) 77, approved the chambers judge’s description of patently unreasonable as “openly, clearly, evidently unreasonable”.

Should the WCAT Decision be Disturbed?

[17] Under the wording of s. 243(3) of the WCA, the statute provides that there are preconditions for granting an extension. These are conjunctive in nature. Therefore, if “special circumstances” are not found to exist, or, if no injustice would otherwise result, the statute does not permit the WCAT chair to extend the time for filing.

[18] Under Item #5.31 of the WCAT Manual of Rules of Practice and Procedure [MRPP], "special circumstances" are defined as follows:

Special circumstances must preclude the filing of the appeal on time. The definition of "special" includes "unusual", "uncommon", "exceptional" and "extraordinary". In the context of section 243(3), "preclude" does not mean "absolutely prevent". It may include "prevent", "hinder", "impede", or "delay" (see WCAT Decision #2003-01810). In the context of an extension of time application, panels will not consider the merits of the appeal.

The following factors may be considered in deciding whether special circumstances precluded the filing of an appeal on time:

(a) the date on which the applicant actually received the decision under appeal;

(b) if there was a delay in receipt of the decision, the reason for the delay (e.g. inaccurately addressed mail, applicant out of town);

(d) whether the applicant has obtained significant evidence which, at the time the decision was issued, either did not exist or existed but was not discovered and could not through the existence of reasonable diligence have been discovered (see WCAT Decision #2004-00433); and,

(e) whether the applicant took all reasonable steps to ensure a timely appeal.

Additionally, in considering whether acts and omissions of representatives constitute special circumstances that precluded the filing of the appeal on time, WCAT will take into account the following factors (see WCAT Decision #2003-04175):

(a) whether, within the relevant appeal period, the party instructed a representative to appeal;

(b) whether the party gave appeal instructions promptly (early in the appeal period);

(c) whether the party followed up with the representative within the appeal period to ensure that the representative initiated the appeal;

(d) whether the party was in any way responsible for the delay;

(e) whether the representative acted as quickly as possible to appeal as soon as the delay was brought to their attention;

(f) if the party is no longer represented, whether the party acted as quickly as possible to appeal as soon as they became aware of the delay; and

(g) any other relevant circumstances particular to the case.

[19] In its decision, WCAT identified the statutory framework and the factors which needed to be considered under s. 243(3) of the WCA. It expressly set out the statutory factors and turned to a consideration of the first factor, whether special circumstances existed that precluded the filing of the appeal on time. In addressing this factor, WCAT set out the more detailed recitation of factors provided in Item #5.31 of the Manual of Rules of Practice and Procedure at page 6 of its decision.

[20] I am satisfied that WCAT took the necessary statutory requirements into account and that there is no indication on the face of the record that the panel based its decision entirely or predominantly on irrelevant factors.

[21] I am satisfied that there is some evidence in the record which could support the WCAT conclusion. In fact I would go so far as to say that there was more than ample evidence to support the conclusion although I am not required to go that far.

[22] The petitioner focussed his argument on the basis that the Worker’s Advisor sent him a letter dated November 29, 2004, which advice was not to pursue a review of the decision of the Board dated July 27, 2004.

[23] However, the WCAT panel concluded that the petitioner did not follow the advice of his Worker’s Advisor and continued to pursue a review of the Review Division and therefore, WCAT concluded that the petitioner’s subsequent decision not to appeal the February 24, 2005 Review Decision to WCAT was entirely and independently the petitioner’s decision. I find that there was some evidence in the record on which WCAT’s conclusions could be based.

[24] The petitioner both before the WCAT panel and on judicial review argued that the WCAT Decision 2005-06502 should be followed. In that case the worker was misled by the Worker’s Advisor who advised the worker that the decision was not appealable; only one of the issues decided by the Review Division was not appealable, but the other issues were. WCAT found in that case that there were special circumstances and granted an extension of time.

[25] WCAT in this case distinguished WCAT Decision 2005-06502 and the record reflects the basis for that finding. The correspondence to the petitioner attached to the February 24, 2005 Review Decision did not mislead the petitioner as to his rights to appeal. The note on that correspondence stated that the petitioner must appeal within 30 days. The advice given to the petitioner by the Worker’s Advisor was that the chances of success were limited and he should withdraw his review request. Despite this advice this petitioner continued with the review and they concluded that the petitioner, in this case, was not misled regarding either the advice given or his ability to appeal. I am satisfied that the facts found by WCAT form a rational basis for its conclusion that no special circumstances existed to grant the extension of time. I am satisfied that the findings of fact based on the evidence are not patently unreasonable and that in these circumstances WCAT exercised its discretion under s. 243(3) of the WCA and that was not patently unreasonable. The petition is therefore dismissed.

The Honourable Mr. Justice F. W. Cole

Citation:	*Herbaut v. British Columbia (Workers' Compensation Appeal Tribunal),*
	2007 BCSC 1656