2008 BCSC 956 Redae v. Workers' Compensation Appeal Tribunal

Before: The Honourable Mr. Justice Warren

Reasons for Judgment

(In Chambers)

Acting on her own behalf:	D. Redae
Counsel for the Respondent:	T.J. Martiniuk
Date and Place of Hearing:	March 4-5, 2008
	Vancouver, BC
Written Submissions of Respondent:	April 17, 2008

Introduction

[1] In her petition under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 the petitioner seeks to set aside the decision of the Workers’ Compensation Appeal Tribunal (“WCAT”) dated October 18, 2007, which summarily dismissed her appeal of a decision of the Review Division of the Workers’ Compensation Board (the “Review Division”) dated April 26, 2006. The reason for summary dismissal was that the appeal had no reasonable prospect for success. The decision of the Review Division appealed from had confirmed an earlier decision of the Workers’ Compensation Board (“WCB”) dated October 28, 2005, which had refused to reopen the petitioner’s 1993 compensation claim in which she had sought further benefits.

[2] The petitioner argues that “the Tribunal erred in denying the appeal, finding that I did not have PTSD or a pain disorder related to my May 1993 claim injury.” She asks that the matter be remitted back to that tribunal with directions.

[3] Regrettably, the petitioner does not specify how the tribunal fell into error and her submissions, understandably perhaps from a self-represented litigant whose first language is not English, were brief: she is still in pain from her injuries and leaves “it” up to the court.

[4] After the hearing in early March 2008, the Supreme Court of Canada delivered its decision in Dunsmuir v. New Brunswick, 2008 SCC 9 and on March 20, 2008 counsel for the respondent enquired if I desired further submissions. Because the petitioner was self represented and it was appropriate that she should be given every opportunity to have the case fully disclosed to her, I directed written submissions from the respondent with a copy to be delivered to Ms. Redae with liberty to her to respond. The respondent’s written submissions were filed on April 17, 2008. Counsel informed me that he had spoken with the petitioner after he had delivered his written submissions to her and she advised she did not wish to make reply or further submissions.

[5] The test on judicial review, as recently restated by the Court in Dunsmuir, may be summarized as follows:

Notwithstanding the theoretical differences between the standards of patent unreasonableness and reasonableness simpliciter, any actual difference between them in terms of their operation appears to be illusory. There ought to be only two standards of review: correctness and reasonableness.

[6] Respondent’s counsel argues that Dunsmuir makes no difference to this case because the Court was dealing with the common law standard of review of decisions of administrative tribunals and the standard of review of WCAT decisions is determined by application of the Administrative Tribunals Act, S.B.C. 2004, c. 45 [ATA]. Counsel submits that the statutory standard of review in the ATA is unaffected by the decision which was dealing with a decision of a New Brunswick administrative tribunal.

[7] The ATA applies to WCAT under s. 245.1 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 [WCA]. Under s. 58 of the ATA, the only possible standards of review are correctness and patent unreasonableness. Accordingly, “reasonableness” is not a standard of review available on a consideration of a WCAT decision. I will return to this later in these reasons.

Background

[8] Because the petitioner’s first language is not English and she was accompanied by an interpreter, I asked counsel for the respondent to provide the background and to make submissions first. It was my hope that the petitioner would then be in a better position to respond.

[9] The petitioner was born July 10, 1953 in what is now Eritrea, Africa and immigrated to Canada in 1990. In 1993, she was working for the Grandview Bindery and in May of that year she tripped and fell at work, injuring the right side of her body. The petitioner reported pain in her right shoulder, back, arm, hand and knee and a claim for her injuries was accepted by the WCB and she was paid temporary total disability/wage loss benefits pursuant to s. 29 of the WCA. These payments were made for 38 days from May 5, 1993 through August 2, 1993, when the petitioner’s doctor had instructed her to return to work commencing August 3, 1993.

[10] Earlier, on June 29, 1993, the petitioner had seen a doctor who had cleared her to perform light duties for half-days beginning at the end of June 1993. The evidence is not clear whether in fact the petitioner did show up for work but in any event on July 14, 1993, another doctor, Dr. Lambert, noted in his progress report that the petitioner had tried to work but she had been informed by her employer that no light duties were available. At the time of his report, Dr. Lambert indicated that the petitioner would be totally disabled for an additional two to three weeks, but could return to work August 3, 1993 “no matter what”.

[11] The petitioner did return to work but was laid off in October 1993 and it appears that the petitioner has not worked since and is dependent on social assistance and Canada Pension Plan Disability payments.

[12] In the spring of 1994, Dr. Lambert wrote to the WCB expressing the opinion that the petitioner had developed early osteoarthritis and rotator cuff symptoms from the accident. As a result, a WCB’s medical advisor reviewed the information on file. He came to a different opinion, namely, that the osteoarthritis was not related to the accident and on June 15, 1994, the WCB decided not to reopen the petitioner’s claim for wage loss benefits and medical aid. The petitioner appealed that decision to the Review Board.

[13] Further medical evidence was gathered including the opinion of a rheumatologist, Dr. Wade, who opined that some of the petitioner’s symptoms in the upper right extremity would be in keeping with a very mild reflex sympathetic dystrophy. An orthopaedic surgeon, Dr. Dommisse, examined the petitioner at the request of her physician and concluded his opinion by noting “there are multiple features of functional overlay and I would not expect this degree of disability one year and seven months following such an injury”.

[14] When the matter was heard by the Review Board on April 26, 1995, there was an oral hearing and on June 13, 1995, the Review Board accepted that the petitioner was still experiencing symptoms in her shoulder and her arm and knee, but concluded that her symptoms were not related to her accident. On July 26, 1995, the petitioner appealed the Review Board’s decision to the Appeal Division of the WCB (the “Appeal Division”).

[15] On September 25, 1995, the WCB decided that the right knee complaints were not related to the accident. The petitioner did not appeal this decision.

[16] On December 27, 1995, the Appeal Division denied the petitioner’s appeal of the June 13 Review Division’s decision. The panel found that the petitioner had sustained injuries to her right shoulder, arm, hand, knee and back and that she had recovered from the effects of her compensable injury and was cleared to go back to work on light duties by July 28, 1993. The Appeal Division found that the petitioner’s ongoing problems were not related to the accident.

[17] In June 1997, the petitioner, with the assistance of a Worker’s Adviser, submitted additional medical information from a chiropractor, Victor Sam, dated May 29, 1997, and asked that her claim be reopened for further benefits. The chiropractor advised that he had treated the petitioner between December 1993 and January 1994, but not again until May 1997, at which time he treated her for very similar but less serious complaints and he had advised the petitioner against working.

[18] On October 1, 1997, the WCB declined to reconsider the claim on the basis that the chiropractor’s report was not significant new information, but in any event was consistent with those previously addressed and considered by the WCB. The petitioner did not appeal this decision.

[19] The petitioner had then exchanged some telephone calls with the WCB complaining of ongoing problems relating to her injuries and on October 30, 1998, Dr. Lambert wrote to the WCB asking that it consider whether the petitioner should be assessed for a “progressively severe post-traumatic stress disorder”. It was his opinion that the accident caused a right rotator cuff injury and “a progressive obsession and fixation around the accident” and she had osteoarthritis in her knees and despite exercising regularly “she has never been able to return to work”. The WCB then referred the petitioner to its staff psychologist, Dr. Beihl, who performed a psychological assessment.

[20] Dr. Beihl opined that the plaintiff had “depressive symptoms not yet reaching a level of clinic significance” centering around her pain coping difficulties. He noted that there was a lack of objective medical findings to account for the degree of her ongoing pain and functional limitations and he had found no evidence of secondary pain as a significant factor contributing to her difficulties. It was his impression that the petitioner had “pain limited functioning [which was] indicative of Pain Disorder (chronic pain syndrome)”.

[21] In a memorandum dated February 18, 1999, a WCB medical advisor expressed the opinion that the petitioner’s complaints were not related to the earlier accepted injuries claim. On February 26, 1999, the WCB decided that the petitioner’s claim would not be reopened on the grounds that the petitioner’s complaints at the time did not relate to the injuries compensated under the 1993 claim. In doing so, the WCB relied on the findings of Dr. Beihl and the opinion of the WCB’s medical advisor, Dr. Newman.

[22] The petitioner appealed that decision to the Review Board on June 1, 1999, and on that occasion the petitioner had the assistance of the Worker’s Adviser office. The petitioner did not perfect the appeal until June 23, 2000 when she submitted Part II of her notice of appeal. On October 2, 2000, the petitioner failed to appear at the time appointed by the Review Board for oral hearings and the Review Board determined that it would not reconvene an oral hearing but considered the appeal based upon written submissions and the information already on file.

[23] At the request of the petitioner, a psychiatrist, Dr. Barry Siegel, prepared a report dated November 15, 2000 in which he advised that he had been seeing the petitioner for approximately a year and that he had diagnosed the petitioner with a chronic pain disorder associated with psychological factors, as well as with a major depressive episode in partial remission. It was Dr. Siegel’s opinion that the petitioner’s pain disorder was precipitated by her work injury. Dr. Siegel did not think that the petitioner had post-traumatic stress disorder. In a follow-up report on November 24, 2000, Dr. Siegel clarified his opinion advising that the petitioner’s pain disorder was caused by her injury and her depressive disorder was caused by the pain disorder.

[24] On February 28, 2001, the Review Board denied the petitioner’s appeal of the 1999 reopening decision and the three-member panel found that in spite of Dr. Siegel’s opinion, the medical evidence did not support the relationship between the petitioner’s pain complaints, the current diagnosis, and her 1993 injury. The panel noted that the petitioner was having the same complaints as when the Appeal Division previously had denied her appeal and there was no significant new evidence, just a new diagnosis or diagnoses. The Review Board also noted that the 1995 decision of the Appeal Division was binding upon them.

[25] Approximately two weeks later, the petitioner, again with the assistance of her Worker’s Adviser, appealed the latest Review Board’s decision to the Appeal Division and that appeal proceeded without an oral hearing and on the basis of the submissions which had been earlier provided to the Review Board.

[26] The Appeal Division denied the petitioner’s appeal on May 31, 2001. The panel noted that the prior Appeal Division decision was binding upon it and that the previous decision had determined that the petitioner’s symptoms after June 28, 1993 were not related to the 1993 injury claim. The panel concluded that the petitioner’s present complaints were essentially the same as those documented in the evidence before the Appeal Division when it had issued its decision and the reports of Dr. Biehl and Dr. Siegel did not document significantly different findings or symptoms but simply provided a new diagnosis. The Appeal Division concluded that the reports “do not provide a sufficient basis for departing from the prior Appeal Division finding”.

[27] The petitioner appears to have either forgotten or not been informed of the Appeal Division decision denying her appeal because on July 22, 2002, she telephoned the WCB to inquire about the status of her claim.

[28] In any event, on August 8, 2002, Dr. Kirby Simpson, a locum for the petitioner’s new doctor, provided the WCB with a medical report that the petitioner had chronic right knee pain (with right knee osteoarthritis) and chronic right shoulder pain. He indicated that the petitioner would like to have her claim reopened. Approximately two months later, the petitioner attempted to file an appeal from the 2001 Appeal Division decision but was advised that this was not possible and on the same day, the petitioner gave the Review Board a request for examination by the Medical Review Panel on the basis that she disagreed with the 2001 decision. Under the legislation in effect at the time, a worker was entitled to appeal a medical decision by the WCB, but had do so no later than 90 days after the decision. The legislation did not authorize any extensions of time.

[29] It appears that there was no activity on this matter until March 4, 2005, when the petitioner again telephoned the WCB to ask it to reopen her claim because she was still experiencing problems related to the injury. The WCB asked for the clinical records of Dr. Hefferen for the period of March 1, 2001 to October 17, 2005, which were in due course received. On October 28, 2005, the WCB decided that the petitioner was not entitled to a reopening of her claim indicating that the findings in Dr. Hefferen’s clinical records “had all indicated ongoing symptoms and complaints of conditions that were not accepted as part of your claim”. The WCB informed the petitioner that her right shoulder complaints had not been accepted as part of the claim.

[30] On January 16, 2006, the petitioner asked for the Review Division to review the 2005 decision on the grounds that she was still in pain and that her injuries were more serious than what the WCB had previously accepted. This request was denied by the Review Division on April 24, 2006, when the panel noted that the earlier decisions of the Appeal Division in respect of the post traumatic disorder or right shoulder complaints were binding. Accordingly, the panel concluded that the medical evidence “strongly supported a conclusion that the petitioner has various non compensable medical conditions and that there was no significant change or recurrence in her compensable condition”.

[31] The petitioner contacted the WCAT on May 26, 2006 indicating that she wished to appeal the 2006 Review Division’s decision and was advised that she needed to file her appeal by June 19, 2006. Regrettably, the petitioner did not file her notice of appeal until July 26, 2006 and her notice submitted that the 2006 decision was incorrect because “I was injured at work and I continued to be injured even though I went back to work…I continue to feel pain and I still cannot work…I am still suffering from the consequences of the injury”.

[32] After the WCAT informed the petitioner that her appeal was filed out of time, she asked for an extension of time on August 8, 2006. On October 16 and November 21, 2006, she provided further submissions to the WCAT in connection with the extension of time request. This request was allowed by the WCAT on June 12, 2007.

[33] On July 25, 2007, the appeal coordinator for the WCAT wrote advising the petitioner that the WCAT was considering dismissing the petitioner’s claim under s. 31(1)(f) of the ATA on the grounds that the appeal had no reasonable prospect for success. The appeal coordinator informed the petitioner that the reason for this decision was that the previous appeal decisions had already determined the issues raised in her appeal, and “because they are binding decisions, it appears that there is likely no merit to your continued assertion that you have ongoing problems related to your 1993 injury.”

[34] Nevertheless, the petitioner was invited to make submissions by August 15, 2007 on whether her appeal should be dismissed and she was informed that a Worker’s Adviser could be of assistance to her should she so desire. The petitioner did not file submissions within the required time. On August 22, 2007, the appeal coordinator wrote to the petitioner and confirmed that no submissions have been received and that the appeal would be returned to the panel to complete its decision.

[35] The summary decision of the WCAT was issued on October 18, 2007, dismissing the petitioner’s appeal under s. 31(1)(f) of the ATA on the basis that “there was no reasonable prospect for success, both because the previous appellate decisions are binding, and have already concluded that you have recovered from your 1993 injury and any ongoing symptoms were not related to the injury”.

[36] It is that decision of the WCAT that is the subject of this petition.

Submissions

[37] Mr. Martiniuk provided me with the historical background of the legislative framework and the Workers’ Compensation scheme.

[38] Because the petitioner was injured before June 30, 2002, the amendments to the WCA proclaimed in 2002 would, generally, have no application to her claim. However, s. 35.1(8) of the WCA provides that if a worker has a “recurrence of a disability” that occurs after the amendment of the WCA but results from an injury that occurred before June 30, 2002 “compensation for the recurrence” is to be determined based on the current act. Mr. Martiniuk pointed out that prior to March 2003, s. 96(2) of the WCA allowed the WCB to at any time reopen, rehear and redetermine any matter, except a discussion of the Appeal Division, which has been dealt with by it or by an officer of the WCB. After March 3, 2003, the WCB’s power to reconsider and reopen was more limited and s-ss. 96(4) and (5) of the current WCA provide that the WCB can reconsider a decision under Part I of the WCA, but only with 75 days from the day the decision was made. Further, s. 96(2) of the WCA permits the WCB to reopen the matter that had been previously decided by the WCB, but only if there has been a significant change in the worker’s medical condition that the WCB had previously decided was compensable or that there had been a reoccurrence of the worker’s injury.

[39] Accordingly, the current s. 96 of the WCA applies to the petitioner’s appeal to the WCAT and also applied to the Board’s 2005 reopening decision and that the Appeal Division’s 2006 decision as they had both occurred after March 3, 2003.

[40] By s. 82(1)(a) of the WCA, the Board of Directors of WCB are empowered and directed to “set and revise as necessary the policies of the Board of Directors, including policies respecting compensation, assessment, rehabilitation and occupational health and safety”. The Board of Director’s policy is binding on the WCB when making or reviewing decisions: s. 99(2) of the WCA. The Board of Director’s policy is also binding on the WCAT when deciding appeals because of the wording of s. 250(2) of the WCA, which reads:

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 WCB of directors that is applicable in that case.

[emphasis added]

[41] Section 31 of the ATA applies to the WCAT and provides:

Summary dismissal

31 (1) At any time after an application is filed, the tribunal may dismiss all or part of it if the tribunal determines that any of the following apply:

…

(f) there is no reasonable prospect the application will succeed.

[42] Section 1 of the ATA provides that an “application” “includes an appeal, a review or a complaint but excludes any interim or preliminary matter or an application to the court”.

[43] Counsel submitted that in every case of judicial review, a reviewing court must first determine the appropriate standard of review by conducting a standard of review analysis, even if the parties have agreed to the standard: Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80, 46 B.C.L.R. (4th) 77.

[44] Mr. Martiniuk submits that under s. 31(1) of the ATA, and particularly under s. 31(1)(f), the power to summarily dismiss an appeal, serves two purposes. First, it enables the WCAT to limit the amount of time and resources expended hearing appeals that do not require, are not entitled to, or should not be entitled to a full hearing on the merits. This power is especially important for a high volume appellate body such as the WCAT and has the related benefit of limiting the amount of time and resources that are to be expended by appealing parties and indeed all parties to the appeal. Second, it enables the Workers’ Compensation system to bring an increased sense of finality to the decisions made under it and discourage parties from bringing appeals where the WCAT has no jurisdiction to hear them (s. 31(1)(a)) or where there is no reasonable prospect of success (s. 31(1)(f)). Counsel submits that a lack of finality was one of the key problems associated with the Workers’ Compensation system before the changes brought about by the 2002 amendments and contributed to the large backlog of appeals inherited by the WCAT.

[45] In Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, 51 B.C.L.R. (4th) 4, the court referred to the earlier decision of the Court of Appeal in Lee v. British Columbia (Attorney General), 2004 BCCA 457, 32 B.C.L.R. (4th) 1 and Mr. Justice Donald’s description of the Human Rights Commission as that of the gatekeeper. At paragraph 26 of Berezoutskaia, Smith J.A. noted:

[26] Although there is now a single tribunal, the scheme has not changed in its essence. The discretion to dismiss a claim that, on a preliminary assessment, does not warrant a full hearing has passed from the former Human Rights Commission to a panel or a member of the Tribunal under the current s. 27(1). The nature of this gate keeping function has not changed. In my view, the approach set out by Mr. Justice Donald to a gate keeping decision of the Human Rights Commission is equally applicable to a gate keeping decision made by a panel or a member of the Tribunal.

[46] Counsel for the respondent submits that although the respondent is an appellate body, unlike the Human Right Tribunal, s. 31(1) of the ATA grants it a gatekeeping function over the appeals made to it and it is therefore empowered to perform a screening process so that only appeals with sufficient merit will proceed to the hearing.

[47] Counsel submits that in considering whether to summarily dismissed an appeal for lack of a reasonable prospect of success, the WCAT must do a preliminary assessment of the appeal and determine whether it warrants the time and expense of a full hearing.

[48] The 2007 WCAT’s summary decision addressed the question of whether the petitioner’s appeal for a reopening had any reasonable prospect of success in the face of the prior Appeal Division decision on the question of reopening and the nature of the petitioner’s ongoing complaints since those decisions.

[49] Counsel submits that whether an appeal has any reasonable prospect for success is a highly discretionary issue and a question of fact, militating in favour of deference and thus exclusive jurisdiction: See Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817 at ¶61, 174 D.L.R. (4th) 193.

[50] The respondent submits that each of the four factors favour deference by a reviewing court and a finding that the WCAT has exclusive jurisdiction over the discretionary question of whether a petitioner’s appeal has a reasonable prospect for success. The respondent submits that applying s. 58(2)(a) of the ATA, the proper standard of review for the WCAT’s summary dismissal decision is patent unreasonableness.

[51] Section 58(2)(a) of the ATA reads:

58 (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.

[52] Section 58(3) of the ATA defines patently unreasonable as one where a discretion is exercised arbitrarily or in bad faith, exercised for an improper purpose, is based entirely or predominantly on irrelevant factors, or fails to take statutory requirements into account.

[53] The Court of Appeal in Berezoutskaia held that where the question before the tribunal is a discretionary one, a reviewing court must apply the patent unreasonableness test set out in the ATA and that the chambers judge had fallen into error in applying a common law definition of patent unreasonableness. The decision in Berezoutskaia was dealing with an appeal from the decision of the Human Rights Tribunal to which s. 59(4) of the ATA applied. Mr. Martiniuk submits that although s. 59 of the ATA does not apply to the WCAT, nevertheless, the reasoning of the Court of Appeal is equally applicable to s. 58 and accordingly, the definition of patent unreasonable set out in s. 58(3) is applicable to this judicial review.

[54] The respondents submits that the result must be tested for patent unreasonableness and whether there are defects in the WCAT’s reasoning is not the issue: see Kovach v. British Columbia (Workers’ Compensation Board), [2000] 1 S.C.R. 55, 96 B.C.L.R. (3d) 93, which was considered by the court in Wyant v. British Columbia (Workers’ Compensation Board), 2006 BCSC 680 where Rogers J. stated at ¶38:

And, of course, the reviewing court may not simply substitute its opinion for that of the Tribunal on the simple ground that the reviewing court feels that it might have decided the case differently.

[55] In summary, the respondent’s counsel submits that when the WCAT summarily dismissed the appeal pursuant to s. 31(1)(f) of the ATA on the basis that it had no reasonable prospect of success, it concluded that it was bound by the earlier Review Division and Appeal Division decisions that the petitioner had recovered from her 1993 injuries and that any ongoing symptoms were not related to the injury. As required by the WCA, the petitioner was notified of the intention to dismiss her appeal on a summarily basis and the WCAT’s July 25, 2007 letter gave the petitioner an opportunity to be heard. The petitioner did not take advantage of that opportunity.

[56] Although the WCAT panels are not bound by legal precedent except for decisions of a precedent panel under s. 38(6) of the WCA, a WCAT panel is bound by a previous WCAT decision if the appeal involves the same parties and the same claim and the decision relates to the matter on appeal: s. 255 of the WCA. [counsel’s emphasis]

[57] The WCAT is also bound by a decision of the Appeal Division that was not appealed to a Medical Review Panel on a medical question or was set aside by a court on judicial review.

[58] Section 35(1)(b) of the Interpretation Act, R.S.B.C. 1996, c. 238, means that s. 96.1(1) of the pre-2002 WCA remain applicable to matters before the WCAT and that the previous Appeal Division decisions remained final and conclusive. Accordingly, the respondent submits that the Appeal Division decisions and any unappealed decisions on a particular claim are final and conclusive and binding on WCAT: see British Columbia v. Bolster, 2007 BCCA 65, 63 B.C.L.R. (4th) 263. Thus, the WCAT is bound by the 1995 and 2001 Appeal Division’s reopening decisions. Although the WCAT does have statutory authority to reconsider the Appeal Division decisions on new evidentiary grounds, the petitioner has never sought a reconsideration of the Appeal Division decisions.

[59] Therefore, as the Appeal Division decisions are binding on the WCAT, it would have to conclude there was reason to think that the petitioner’s claim should have been reopened at the time of the 2005 reopening decision in order to make a finding that there was a reasonable prospect that the petitioner’s appeal would succeed. However, in order to arrive at that conclusion, the WCAT would have had to have considered that there was some evidence that the petitioner suffered from fresh symptoms that constituted a reoccurrence of the condition that the 1995 Appeal Division’s decision determined that the petitioner had recovered from. The 2001 Appeal Division decision rejected that the petitioner’s position her complaints in 2005 were similar to those considered by the Appeal Division in 1995. The WCAT submits that it was “not patently unreasonable for the WCAT panel to have concluded that the petitioner’s appeal had no reasonable prospect of success on the basis that WCAT was bound by those decisions”. The respondent submits that the new evidence provided a rational basis for the panel’s implied conclusion that the petitioner’s symptoms ongoing since 2001 were the same as those already addressed by the earlier decision.

[60] The petitioner argues that the WCAT erred in denying the appeal in “finding I did not have PTSD or a Pain Disorder related to my May 1993 claim injury”.

[61] Respondent’s counsel submits that the WCAT panel made no such finding. Rather, it summarily dismissed the petitioner’s appeal as not likely to succeed because the Appeal Division had already answered that question and it was not open to the WCAT to revisit it. Because the WCAT made no such finding, it is simply impossible for the WCAT to have made the error alleged by the petitioner.

[62] Counsel submits that the decision to summarily dismiss the appeal under s. 31(1)(f) of the ATA involved an exercise of discretion and the record clearly shows that the panel did not exercise its discretion arbitrarily, in bad faith, or for an improper purpose; nor did it make its decision on entirely or predominantly irrelevant factors, or fail to take any statutorily requirements into account.

[63] On the issue of costs, not claimed by the petitioner, counsel referred to Lang v. British Columbia (Superintendent of Motor Vehicles) (2005), 2005 BCCA 244, 43 B.C.L.R. (4th) 65, which held that costs ought not be awarded against a tribunal unless there was “misconduct or perversity in the proceedings before the tribunal; or the tribunal argues the merits of a judicial review application rather than its own jurisdiction”. The respondent submits that there is no evidence of any misconduct or perversity in its proceedings and its role in these proceedings was limited. The WCAT does not seek costs and asks that costs not be awarded against it.

Conclusion

[64] Whatever standard may be applicable, the correctness, reasonableness, or the patently unreasonable standard, the summary decision of the WCAT was correct. I have set out at considerable length the background and history so that Ms. Redae will have a ready reference and hopefully understand both that decision and this.

[65] Because the petitioner was unrepresented, I leave to another court to consider what impact Dunsmuir has on the appropriate standard of review of decisions of the WCAT under the ATA. In my view, it would be more appropriate after counsel for both sides have had an opportunity to fully argue the law. For the purposes of this decision, I agree with respondent’s counsel’s submission that the appropriate standard of review is that set out in s. 58 of the ATA: the petitioner must demonstrate that decision appealed from was patently unreasonable. In the case before me, it was not.

[66] It is my view that the petitioner has been treated with every courtesy and she has been given every opportunity throughout the long history of her claim. The record clearly shows that the WCAT exercised its discretion appropriately and there is not even a scintilla of a suggestion that it acted in bad faith or for an improper purpose. The decision was clearly based on relevant factors after taking the statutory requirements into account and the WCAT correctly applied s. 31(1)(f) of the WCA on the basis that the petitioner’s appeal from the 2006 Review Division’s reopening decision had no reasonable prospect of success.

[67] For these reasons, the petition is dismissed. Each side will bear their own costs.

“The Honourable Mr. Justice Warren”

Citation:	*Redae v. Workers’ Compensation Appeal Tribunal,*
	2008 BCSC 956