2009 BCSC 62 Asquini v. British Columbia (Worker's Compensation Appeal Tribunal)

Before: The Honourable Mr. Justice Blair
in Chambers

Reasons for Judgment

Counsel for the Petitioner	V.A. Ishkanian
Counsel for the Respondent	V.A. Pylypchuk
Counsel for the Attorney General for British Columbia	G.H. Copley, Q.C. J. Penner
Date and Place of Trial/Hearing:	January 14 – 17, 2008
	Vancouver, B.C.

[1] The petitioner, Carlo Asquini, applies pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 (the “JRPA”), for an order quashing two decisions of the Workers’ Compensation Appeal Tribunal (“WCAT”) and directing that his claim be remitted to the WCAT for rehearing.

[2] The Attorney General of British Columbia received notice of this application and initially advised he would not participate in the hearing. However, while the Attorney General did not appear at the January 2008 hearing, subsequent events led to the Attorney General’s participation. After the hearing, and while judgment was reserved, the Supreme Court of Canada, on March 7, 2008, rendered its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, in which it concluded that the former three standards of judicial review of administrative tribunals -- correctness, reasonableness simpliciter, and patent unreasonableness -- should be reduced to two standards, correctness and reasonableness. In response to a query from WCAT, I agreed that the parties ought to provide submissions on the impact, if any, of Dunsmuir on the standards of review applicable in determining Mr. Asquini’s petition.

[3] The petitioner, on April 15, 2008, then gave Notice of a Constitutional Challenge under the Constitutional Question Act, R.S.B.C. 1996, c. 68, asserting that ss. 58(2)(a) and 58(3) of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”), were ultra vires the province of British Columbia as a result of the Dunsmuir decision. The Attorney General filed an appearance and by May 16, 2008 counsel for the Attorney General had provided written submissions on the constitutional question, as had WCAT and Mr. Asquini. The Attorney General of Canada was served with notice of the constitutional question, but declined to intervene.

Background

[4] Mr. Asquini, born November 17, 1932 and presently aged 76 years, suffered a neck injury after slipping on a pipe on April 27, 1990 while employed as a crane operator. He asserts that his employment has since been limited to a few days in June 1990. As a worker suffering employment-related injuries, Mr. Asquini claimed benefits pursuant to the Workers Compensation Act, R.S.B.C. 1996, c. 492 (the “WCA”), contending that the April 27, 1990 injury left him permanently totally disabled from working and entitled to a loss of earnings award based on 100 percent total disability.

[5] Mr. Asquini has pursued his claim from 1990 with the Workers’ Compensation Board (the “Board”) which administers the WCA through the review and appeals process permitted under the WCA, a pursuit reflected in the extensive material which the Board has accumulated, copies of which were filed by the WCAT to provide a contextual background for Mr. Asquini’s present application. I will refer to the particulars of Mr. Asquini’s voluminous history with the Board only when it is necessary to provide background to the present application.

[6] On June 18, 1990, the Board, now described as WorkSafeBC, denied Mr. Asquini’s claim. However, on June 23, 1994, the Board’s appeal division concluded that, although Mr. Asquini’s cervical problems developed from a degenerative disc disease, his complaints had been accelerated or aggravated by the 1990 injury and his disability was therefore compensable. The Board’s review board on September 12, 1995 determined that Mr. Asquini had been temporarily totally disabled from April 27, 1990 to June 11, 1991, and that he was entitled to wage loss and health care benefits for that period.

[7] The Board then determined on September 10, 1996 that, after Mr. Asquini’s injury stabilized on June 11, 1991, he was entitled to a permanent partial disability pension assessed as one percent of total disability. The Board rejected Mr. Asquini’s claim for a loss of earnings pension, finding that his disability did not prevent him from performing most of his work activities. Further considerations by the Board through reviews and appeals followed, culminating in a referral to a Medical Review Panel (the “MRP”) composed of three physicians. On December 22, 1999, the MRP issued a certificate which, pursuant to s. 65 of the WCA, is conclusive as to the matters certified and binding on the Board with respect to medical matters. The MRP certified that Mr. Asquini’s disability with respect to his neck and upper limbs resulted from bilateral cervical nerve root irritation due to chronic cervical spondylosis. The certificate confirmed that Mr. Asquini’s pre-existing asymptomatic cervical spondylosis was of major causative significance regarding his disability and that the 1990 work injury was of “lesser causative significance in producing the disability”.

[8] On September 18, 2000, the Board, on receipt of the MRP’s certificate, arranged a permanent functional impairment examination of Mr. Asquini’s condition and, on the basis of the report prepared following the examination, increased Mr. Asquini’s permanent functional impairment disability to 1.5 percent plus a .14 percent age adaptability, for a total of 1.64 percent. Mr. Asquini appealed. The Board’s review board held a hearing and the panel, consisting solely of vice chair Dana G. Brinley, in her judgment filed August 27, 2002 as WCAT Appeal No. 902696-F, directed that there be an employability assessment of Mr. Asquini’s employment capacities, having noted the MRP’s conclusion in its narrative, although not in its binding certificate, that Mr. Asquini was disabled from working as a crane operator.

[9] A vocational rehabilitation consultant conducted the employability assessment by reviewing the Board’s file and concluded in an April 15, 2003 report that, in spite of the restrictions resulting from the 1990 injury on Mr. Asquini’s ability to look upwards, he could have continued working as a heavy equipment operator. The Board’s disability awards department in its April 22, 2003 decision relied on the employability assessment to deny any further increase in the award to Mr. Asquini or any consideration of his claim for a loss of earnings pension.

[10] Mr. Asquini sought a review by the Board’s review division of the disability awards department’s April 22, 2003 decision. The review division on December 10, 2003 confirmed the April 22, 2003 decision, holding that Mr. Asquini’s 1990 injury impeded him from using his hands when looking upwards as he operated a crane, but that he retained a continuing capacity to operate other heavy equipment. The review division confirmed that as a heavy duty equipment operator Mr. Asquini would have earned an income comparable to that of a crane operator and he was therefore not entitled to a permanent disability award based on a loss of earnings.

[11] Mr. Asquini’s subsequent appeal from the review division’s December 10, 2003 decision came before the WCAT’s vice chair Duncan H. MacArthur, who conducted an oral hearing on August 11, 2004. In his November 1, 2004 judgment, filed as WCAT decision No. 204-05802 (the “Original Decision”), vice chair MacArthur denied Mr. Asquini’s appeal, upholding the reasons and conclusions of the review division that Mr. Asquini was only permanently partially disabled, and rejecting Mr. Asquini’s assertion that he was permanently totally disabled and entitled to a loss of earnings pension. Mr. Asquini’s application for a reconsideration of the Original Decision was heard by WCAT vice chair Herb Morton who, in his reasons filed February 16, 2007 as WCAT decision No. 2007-00555 (the “Reconsideration Decision”), upheld the Original Decision, but granted Mr. Asquini his costs for retaining an opinion from a vocational rehabilitation consultant whose report was considered but not relied upon by vice chair MacArthur, who had declined to award Mr. Asquini the costs for the report.

[12] Mr. Asquini commenced this petition for review under the JRPA seeking an order quashing both the Original and the Reconsideration Decisions and directing that Mr. Asquini’s claim be remitted to the WCAT for a rehearing. Mr. Asquini grounds this application for judicial review on a number of grounds:

a) the Original Decision erred in law and was patently unreasonable in that vice chair MacArthur failed to apply binding decisions from both the MRP and the review board’s August 27, 2002 decision, and made findings of fact which were speculative, or not supported by or contrary to the evidence;

b) vice chair MacArthur erred in law and his decision was patently unreasonable in failing to give weight or sufficient weight to the expert evidence from a vocational rehabilitation consultant retained by Mr. Asquini. In his employability assessment report the rehabilitation consultant concluded that Mr. Asquini was unable to work either as a crane or heavy duty equipment operator, conclusions contrary to the Board’s employability assessment report dated April 15, 2003. The vice chair gave greater weight to the findings of the Board’s consultant than the finding proffered by Mr. Asquini’s consultant;

c) vice chair Mr. MacArthur erred in law and his decision was patently unreasonable in that it failed to give any or sufficient weight to the evidence he provided at the hearing. Mr. Asquini asserts that the vice chair also failed to correct what Mr. Asquini says are factual errors in the Board’s file, and that he relied on those incorrect factual assumptions in reaching the Original Decision; and

d) the presence of bias, the reasonable apprehension of bias and conflict of interest on the part of vice chair MacArthur which, pursuant to the common law rules of natural justice and procedural fairness, should have led vice chair MacArthur to recuse himself from the appeal.

[13] Mr. Asquini also seeks an order quashing the Reconsideration Decision on the grounds that vice chair Morton’s decision erred in law and was patently unreasonable in failing to find that vice chair MacArthur:

a. was biased or that his hearing the matter left an apprehension of bias;

b. made findings of fact that contradicted previous binding decisions;

c. failed to correctly interpret binding Board policies in accordance with the evidence;

d. erred in relying upon the Board’s employability assessment report;

e. erred in concluding, contrary to the conclusion of the MRP, that Mr. Asquini could have returned to his pre-injury employment; and

f. erred in reaching findings irreconcilable and contradictory to the decisions of the MRP, the review board findings of vice chair Brinley dated August 27, 2002, and the decision of WCAT vice chair Ralph McMillan, filed September 12, 2005 as No. 2005-4761.

[14] Although Mr. Asquini initially submitted that both the Original and the Reconsideration Decisions should be reviewed to a standard of patent unreasonableness, following the decision in Dunsmuir, Mr. Asquini submitted that the patent unreasonableness test was no longer applicable and that the appropriate standard of review was that of reasonableness.

WCAT’s Standing

[15] Counsel for Mr. Asquini acknowledges that WCAT has standing to be a party in this judicial review; however, WCAT’s role is circumscribed as described in Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684 at 709, 89 D.L.R. (3d) 161:

… [A]ctive and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties.

[16] The limits on WCAT’s participation are apt in Mr. Asquini’s situation where the relief sought, if granted, would result in the matter being remitted to WCAT for rehearing.

Issues

[17] The petition raises the following matters:

(a) whether ss. 58 and 59 of British Columbia’s ATA are ultra vires the Province of British Columbia in light of the decision of the Supreme Court of Canada in Dunsmuir with respect to the standards of review applicable to decisions of administrative tribunals (the “Constitutional Question”);

(b) the standards of review applicable in reviewing the Original and Reconsideration Decisions;

(c) whether WCAT vice chair MacArthur breached the common law rules of natural justice and procedural fairness in failing to recuse himself from hearing Mr. Asquini’s appeal on the basis of bias, reasonable apprehension of bias, or conflict of interest;

(d) whether WCAT vice chair Morton erred in concluding that Mr. Asquini had failed to establish bias, apprehension of bias or conflict of interest such as to amount to a breach of the common law rules of natural justice and procedural fairness on the part of vice chair MacArthur such that he should have recused himself from hearing Mr. Asquini’s appeal;

(e) whether the Original Decision of vice chair MacArthur should be quashed; and

(f) whether the Reconsideration Decision of vice chair Morton should be quashed.

The Constitutional Question

[18] Mr. Asquini in his Notice of Constitutional Challenge questioned the constitutional validity of ss. 58(2) and 58(3) of the ATA, which provide for a standard of patent unreasonableness in the judicial review of an administrative tribunal’s decision. The Attorney General of British Columbia responded to Mr. Asquini’s constitutional question. Counsel for WCAT took no position on the constitutional issues, but submitted that in the administrative law context the Dunsmuir decision did not affect Mr. Asquini’s judicial review.

[19] Mr. Asquini contends that in Dunsmuir the Supreme Court of Canada removed patent unreasonableness as an applicable standard of judicial review. Mr. Asquini further submits that the aforesaid provisions of the ATA are ultra vires the province of British Columbia as encroaching on the inherent jurisdiction of superior court justices appointed pursuant to s. 96 of the Constitution Act, 1867 (U.K.) 30 & 31 Victoria, c. 3., and that Dunsmuir establishes the appropriate standards of judicial review as correctness and reasonableness. In his notice, Mr. Asquini originally sought an order in the nature of certiorari; however, he subsequently acceded to the Attorney General’s submission that the relief sought, which the Attorney General opposes, would be in the form of a declaration that the pertinent sections are ultra vires the province of British Columbia.

[20] The Attorney General also noted that, while Mr. Asquini in his Notice of Constitutional Challenge impugned only s. 58(2) and 58(3), in his submission Mr. Asquini also challenged s. 59 of the ATA and sought an order declaring that section ultra vires as well. I consider the constitutionality of both ss. 58 and 59 are appropriately addressed in this action. The impugned provisions read as follows:

Standard of review if tribunal's enabling Act has privative clause

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.

Standard of review if tribunal's enabling Act has no privative clause

59(1) In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.

(2) A court must not set aside a finding of fact by the tribunal unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.

(3) A court must not set aside a discretionary decision of the tribunal unless it is patently unreasonable.

(4) For the purposes of subsection (3), 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.

(5) 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.

[21] The Dunsmuir decision is the basis for Mr. Asquini’s constitutional challenge to ss. 58 and 59 of the ATA. In Dunsmuir, the Supreme Court of Canada addressed the challenge faced by judges as to what standard of review ought to be applied to decisions of administrative tribunals. The question in Mr. Asquini’s case is whether this court is bound by the common law standards of review set out in Dunsmuir or the statutory standards found in British Columbia’s ATA.

[22] In Dunsmuir, Bastarache and Lebel JJ., writing for the majority, commenced their judgment as follows:

[1] This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges. The time has arrived for a reassessment of the question.

[23] In its reassessment, the majority determined there should only be two standards of review, correctness and reasonableness, and deleted the standard of patent unreasonableness, stating:

[43] The Court has moved from a highly formalistic, artificial “jurisdiction” test that could easily be manipulated, to a highly contextual “functional” test that provides great flexibility but little real on-the-ground guidance, and offers too many standards of review. What is needed is a test that offers guidance, is not formalistic or artificial, and permits review where justice requires it, but not otherwise. A simpler test is needed.

[44] As explained above, the patent unreasonableness standard was developed many years prior to the introduction of the reasonableness simpliciter standard in Southam. The intermediate standard was developed to respond to what the Court viewed as problems in the operation of judicial review in Canada, particularly the perceived all-or-nothing approach to deference, and in order to create a more finely calibrated system of judicial review (see also L. Sossin and C. M. Flood, “The Contextual Turn: Iacobucci’s Legacy and the Standard of Review in Administrative Law” (2007), 57 U.T.L.J. 581). However, the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review. Though we are of the view that the three-standard model is too difficult to apply to justify its retention, now, several years after Southam, we believe that it would be a step backwards to simply remove the reasonableness simpliciter standard and revert to pre-Southam law. As we see it, the problems that Southam attempted to remedy with the introduction of the intermediate standard are best addressed not by three standards of review, but by two standards, defined appropriately.

[45] We therefore conclude that the two variants of reasonableness review should be collapsed into a single form of “reasonableness” review. The result is a system of judicial review comprising two standards — correctness and reasonableness. But the revised system cannot be expected to be simpler and more workable unless the concepts it employs are clearly defined.

[46] What does this revised reasonableness standard mean? Reasonableness is one of the most widely used and yet most complex legal concepts. In any area of the law we turn our attention to, we find ourselves dealing with the reasonable, reasonableness or rationality. But what is a reasonable decision? How are reviewing courts to identify an unreasonable decision in the context of administrative law and, especially, of judicial review?

[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[48] The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers” (Mossop, at p. 596, per L’Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49).

[49] Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

[50] As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

[24] Mr. Justice Binnie, in his concurring judgment, offers a cautious comment in language which might be interpreted as cynical with respect to the effect of removing patent unreasonableness as a standard of review. He writes:

[139] The judicial sensitivity to different levels of respect (or deference) required in different situations is quite legitimate. “Contextualizing” a single standard of review will shift the debate (slightly) from choosing between two standards of reasonableness that each represent a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference. In practice, the result of today’s decision may be like the bold innovations of a traffic engineer that in the end do no more than shift rush hour congestion from one road intersection to another without any overall saving to motorists in time or expense.

[140] That said, I agree that the repeated attempts to define and explain the difference between reasonableness simpliciter and “patent” unreasonableness can be seen with the benefit of hindsight to be unproductive and distracting. Nevertheless, the underlying issue of degrees of deference (which the two standards were designed to address) remains.

[25] Mr. Asquini submits that Dunsmuir reinforces the role of superior courts in judicial review, asserting that it is for the court, not the legislature, to determine the appropriate standard of review. Mr. Asquini refers specifically to paras. 31 and 52 of Dunsmuir, in which Bastarache and Lebel JJ write:

[31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier:

Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38]

See also D. J. Mullan, Administrative Law (2001), at p. 50.

[52] The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion is appropriate because a privative clause is evidence of Parliament or a legislature’s intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized. This does not mean, however, that the presence of a privative clause is determinative. The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts’ power to review the actions and decisions of administrative bodies. This power is constitutionally protected. Judicial review is necessary to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies do not exceed their jurisdiction.

[26] Mr. Asquini submits that declaring ss. 58 and 59 of the ATA ultra vires would mean that the appropriate standard of review in his case would be reasonableness, as set out in Dunsmuir, and not patent unreasonableness, as he had initially submitted. The reasonableness standard would apply to the WCAT’s findings of fact, law, and any exercises of discretion that are properly within its jurisdiction.

[27] Before discussing the Attorney General’s response I will address two other submissions made by Mr. Asquini in urging that ss. 58 and 59 of the ATA be declared ultra vires. Mr. Asquini submitted that allowing the impugned provisions of the ATA to stand would permit legislatures to pass legislation restricting a superior court’s review of an administrative tribunal’s decision. The question raised by Mr. Asquini relates solely to the constitutionality of ss. 58 and 59 of the ATA. What provincial legislatures might do in the future is not the question before me and is not one to which I need, nor am prepared, to respond.

[28] Mr. Asquini further submits that permitting ss. 58 and 59 of the ATA to stand might result in provincial legislatures passing differing standards of review for administrative tribunals, thereby negating what Mr. Asquini describes as the aim of consistency in the law. The provincial governments in Canada possess powers under the Constitution to pass legislation within their legislative spheres without regard to whether the legislation is consistent with that passed in other provinces. The reality is that the provinces across this vast nation have different legislative needs and enact legislation shaped specifically for the requirements of their respective provinces and populations. There is no constitutional directive that requires statutory consistency among the various provinces in their legislative spheres. I find it unnecessary to address Mr. Asquini’s submission in this regard.

[29] The Attorney General’s response to the petitioner’s Constitutional Question is that ss. 58 and 59 of the ATA are constitutionally sound and that the provisions prevail over common law standards of judicial review such as are found in Dunsmuir. The Attorney General submits that the onus rests with Mr. Asquini to establish that the impugned provisions of the ATA are unconstitutional. The Attorney General further submits that the constitutional limit on the legislature’s ability to legislate with respect to judicial review is found in Crevier v. Quebec (Attorney General), [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1, in which Laskin C.J.C. gave judgment for the Supreme Court of Canada. He stated, at 236:

lt is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality.

[30] The Chief Justice continued at 237-238:

This Court has hitherto been content to look at privative clauses in terms of proper construction and, no doubt, with a disposition to read them narrowly against the long history of judicial review on questions of law and questions of jurisdiction. Where, however, questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [emphasis added]

[31] The Supreme Court of Canada recognized in Ocean Port Hotel v. British Columbia (General Manager, Liquor Control and Licensing), 2001 SCC 52, [2001] 2 S.C.R. 781, that, short of ousting judicial review of administrative decisions, the legislature had considerable flexibility in determining how such reviews would be conducted. In para. 22, McLachlin C.J.C., giving judgment for the Court, stated:

Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question. [emphasis added]

[32] I understand that Crevier recognizes legislative limitations on judicial review involving questions of law and questions of jurisdiction, but precludes legislation purporting to oust judicial review of administrative tribunal decisions. However, I find nothing in the language of ss. 58 or 59 purporting to preclude judicial review of decisions made by administrative tribunals in British Columbia or attempting to limit or exclude the courts from exercising their superintending and reforming powers in situations in which judicial review reveals jurisdictional or other error. Of significant import is the absence of language in ss. 58 and 59 which might attract a response such as Laskin C.J.C. expressed in Crevier. I conclude that the legislative approach found in ss. 58 and 59 does not run afoul of Chief Justice Laskin’s limitation found in Crevier in which the Supreme Court found unconstitutional the provincial legislature’s attempt to oust judicial review of administrative decisions.

[33] The legislature, in enacting ss. 58 and 59 of the ATA, codified the standards of review to be applied by superior courts in British Columbia when reviewing decisions made by administrative tribunals. Indeed, the standards of review and deference found in the ATA are similar to those created by the Supreme Court of Canada: correctness, reasonableness, fairness and patent unreasonableness. British Columbia’s legislators enacted the ATA in an attempt to assist judges when reviewing a decision of an administrative tribunal. Although Dunsmuir recognizes the difficulties posed by the three standards of review and reduces the standards to correctness and reasonableness, this does not, I conclude, violate any constitutional limitation on the jurisdiction that British Columbia can confer on administrative tribunals.

[34] In conclusion, Mr. Asquini has failed to satisfy me that ss. 58 and 59 of the ATA violate any constitutional limitation on the jurisdiction that British Columbia can confer on administrative tribunals.

[35] I dismiss Mr. Asquini’s application under the Constitutional Questions Act to declare ss. 58 and 59 of the ATA ultra vires the province of British Columbia. In the result, the standards of review applicable to Mr. Asquini’s petition are those located in s. 58 of the ATA, and will include in this review the standard of patent unreasonableness, where applicable.

The Applicable Standards of Review

[36] I turn next to the standards of review applicable to the two WCAT decisions which led to Mr. Asquini’s petition. At the initial hearing both parties in their submissions referred to the standard of review applicable to questions of fact, law, or the exercise of discretion as patent unreasonableness. In the wake of Dunsmuir, which removed the standard of patent unreasonableness, Mr. Asquini submitted that the appropriate test was the common law standard of reasonableness. Having rejected Mr. Asquini’s constitutional challenge, I am left to determine the applicable standard of review, noting that s. 58 of the ATA provides only for the application of correctness or patent unreasonableness to WCAT decisions.

[37] Despite counsels’ initial agreement as to the applicable standard of review, the reviewing court must itself determine the appropriate standard or standards of review applicable. In recent years, the reviewing court has been directed to determine the appropriate standard of review, be it patent unreasonableness, reasonableness simpliciter, or correctness, by engaging in an analysis using the pragmatic and functional approach. That approach was described by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4^th) 1, and, more recently, in Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226. In Dr. Q, McLachlin C.J.C. repeated the need for the judge reviewing an administrative tribunal’s decision to determine the standard of review, stating at ¶ 21:

[21] The term “judicial review” embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal. In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach.

[38] The Chief Justice, at ¶26, outlined the four steps of the pragmatic and functional approach:

[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.

[39] A review of British Columbia cases indicates the difficulty found in determining the appropriate standard of review, a difficulty which found expression in the decision of Madam Justice Russell in McIntyre v. Employ & Assist. Appeal Tribunal, 2005 BCSC 1179, in which she wrote:

[15] Determining the applicable standard of review has historically involved a complicated and labyrinthine analysis aimed at discovering the legislative intent of the statute creating the tribunal whose decision is being reviewed. Fortunately, in British Columbia, the Administrative Tribunals Act has removed the need for this analysis as it statutorily prescribes the appropriate standard of review for tribunals protected by privative clauses and those not so protected.

[40] In Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80, 46 B.C.L.R. (4th) 77, Levine J.A. noted the necessity of the reviewing judge to determine the standard of review on the pragmatic and functional approach as directed by McLachlin C.J.C. in para. 21 of her judgment in Dr. Q. Levine J.A. reinforced the obligation placed upon a reviewing judge to determine the appropriate standard of review in British Columbia v. Bolster, 2007 BCCA 65, 63 B.C.L.R. (4^th) 263, where she wrote, at para.112:

[112] In my opinion, the standard of review a court adopts on a judicial review proceeding is not a "right" that "belongs to" or is "in the control of" any party to the proceeding. As McLachlin C.J.C. pointed out in Dr. Q, it is the process a superior court follows to carry out its constitutional responsibility for the rule of law in reviewing the decisions of statutory tribunals. The standard of review in a particular case is determined by the court as part of the judicial review proceeding, at common law by employing a principled application of the pragmatic and functional approach, and under the Act by interpreting and applying s. 59. Previous determinations of the standard of review in similar cases, especially at common law, may or may not apply, as "[t]he pragmatic and functional approach demands a more nuanced analysis based on consideration of a number of factors. This approach applies whenever a court reviews the decision of an administrative body" (Dr. Q at para. 25). Thus, no party can claim a "right" in a particular standard of review.

[emphasis in original]

[41] I construe Bolster as directing the court to consider the standard of review using the pragmatic and functional approach described in Dr. Q., or what is now referred to in Dunsmuir as the “standard of review analysis”, where the common law is applicable. However, in all other cases, the provisions of the ATA will govern the applicable standard of review. It is open to the province of British Columbia to determine the standard of review applicable. The question for the court is therefore the nature of the error it has been asked to review, whether an error of law, fact or an exercise of discretion, or a matter of fairness. Once that is determined, the court must apply the standard of review as set out in the ATA.

[42] In the instant case, Mr. Asquini alleges errors of law and bias or reasonable apprehension of bias in the Original Decision, and errors of law in the Reconsideration Decision. For such errors the available applicable standards of review under s. 58 of the ATA are patent unreasonableness for errors of law concerning matters falling within the exclusive jurisdiction of the tribunal under a privative clause, fairness for matters concerning the application of common law rules of natural justice and procedural fairness, and correctness for all other matters.

[43] I find that in Mr. Asquini’s case the errors of law alleged in the Original Decision concern matters over which the WCAT has exclusive jurisdiction under a privative clause, and are therefore subject to a standard of patent unreasonableness under s. 58(2)(a). The allegations of bias, reasonable apprehension of bias or conflict of interest fall under the fairness standard set out in s. 58(2)(b), and will be discussed below.

[44] I must, however, make some reference as to how the standard of review should be applied to the Reconsideration Decision. The WCAT has the authority to reconsider one of its decisions in order to correct jurisdictional defects pursuant to s. 253.1(5) of the WCA which states:

253.1 (1) If a party applies or on the appeal tribunal's own initiative, the appeal tribunal may amend a final decision.

…

(5) This section must not be construed as limiting the appeal tribunal's ability, on request of a party, to reopen an appeal in order to cure a jurisdictional defect.

[45] Further, authority to reconsider a decision is found in s. 256 of the WCA which allows reconsideration as follows:

256 (2) A party to a completed appeal may apply to the chair for reconsideration of the decision in that appeal if new evidence has become available or been discovered.

(3) On receipt of an application under subsection (2), the chair may refer the decision to the appeal tribunal for reconsideration if the chair is satisfied that the evidence referred to in the application

(a) is substantial and material to the decision, and

(b) did not exist at the time of the appeal hearing or did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered.

(4) Each party to a completed appeal may apply for reconsideration of a decision under this section on one occasion only.

[46] WCAT may reconsider its decisions only on the grounds of new evidence as provided by s. 256 of the WCA or by exercising a residual common law authority to cure jurisdictional defects as provided in s. 253.1(5). The WCA prescribes no standard of review for curing jurisdictional defects; as a result, WCAT applies the standards mandated by s. 58 of the ATA. WCAT stated, in its submissions, that the only errors which it addresses under its residual authority are those that a court would find had failed on the appropriate standards of judicial review as set out in the ATA. WCAT took the position, and I agree, that WCAT’s use and application of the s. 58 standards is not a matter which falls within WCAT’s exclusive jurisdiction. Thus the Reconsideration Decision, when reviewed by the court, is subject to a standard of correctness under s. 58(2)(c) of the ATA where the Reconsideration Panel reviewed errors of the original panel.

[47] In matters heard by the Reconsideration Panel at first instance, however, the standard of review on judicial review for errors of law would, under the ATA, be patent unreasonableness, provided the matters were within the exlcusive jurisdiction of WCAT.

[48] In the instant case, the allegations of bias were not made before the Original Panel and therefore were matters of first instance. However, the issue before the Reconsideration Panel was whether vice chair MacArthur had acted fairly. The Reconsideration Panel concluded, on a fairness standard, that vice chair MacArthur had indeed acted fairly. The issue now before this court is whether the Reconsideration Panel was in error when it found that vice chair MacArthur acted fairly. As the content of procedural fairness is not a matter within the exclusive jurisdiction of the WCAT, the standard of review of the Reconsideration Panel’s decision must be correctness under s. 58(2)(c) of the ATA.

[49] To test the correctness of the Reconsideration Decision, the reviewing court ought first to determine whether the Original Decision is patently unreasonable or unfair. If it is not patently unreasonable or unfair, then the Reconsideration Decision was correctly decided. However, if the Original Decision is found to be patently unreasonable or unfair, then the Reconsideration Decision is incorrectly decided and falls accordingly.

[50] I turn next to the question of whether it is open to this court to apply the common law rules expressed in Dunsmuir to decisions of administrative tribunals in British Columbia in the face of the clear statutory direction found in ss. 58 and 59 of the ATA. It is necessary to consider whether Dunsmuir has altered the common law interpretation of the patent unreasonableness standard, which, because it is undefined in the ATA except in reference to discretionary decisions, remains subject to the common law. This court has divided on the issue of whether “patent unreasonableness” in the ATA is now to be defined in light of Dunsmuir as reasonableness, with deference afforded according to the nature of the error alleged and the presence or absence of a privative clause.

[51] I find that for this court to apply a common law rule with respect to the standard of review such as that advanced in Dunsmuir would contradict the legislative direction found in ss. 58 and 59 of the ATA. I note that Dunsmuir dealt with an appeal emanating from New Brunswick. Dunsmuir does not address British Columbia’s statutory context nor the legislative directive found in ss. 58 and 59 of the ATA.

[52] In Re Lavigne, 2008 BCSC 1007, Truscott J. found that the definition of patent unreasonableness “must be as it existed prior to the new standard of reasonableness established by Dunsmuir. The words of s. 58(2)(a) requiring a standard of “patently unreasonable” cannot be ignored”: at para. 97.

[53] In the slightly later case British Columbia Securities Commission v. Burke, 2008 BCSC 1244, 297 D.L.R. (4^th) 464, Cullen J. concluded, conversely, that “patent unreasonableness” in the ATA must be interpreted in accordance with the evolving common law as set out in Dunsmuir:

[106] …[T]he preferable position is that advanced by the petitioner that the effect of Dunsmuir, which collapses the common law patent unreasonableness and reasonableness standards of review into one standard of “reasonableness”, is to similarly change the meaning and effect of the phrase “patent unreasonableness” as it is used in relation to findings of fact and law in s. 58(2)(a), but not as it is used and defined in relation to the exercise of discretion in either s. 58 or s. 59.

[107] The use of the phrase “patently unreasonable” in s. 58(2)(a), as it applies to a finding of fact or law, is nowhere defined in the ATA. It can only be given meaning and effect by reference to the common law, which by its nature, is evolutionary. There is nothing…in the context of s. 58…that supports the interpretation that the phrase “patently unreasonable” in s. 58(2)(a), insofar as it applies to findings of fact or law, is to be given a static definition to the point of falling out of step with ongoing developments in the common law. Had the legislature intended to freeze the definition of patent unreasonableness, it could have done so explicitly…

[110] In my view, given the context of the ATA, in which the phrase “patent unreasonableness” is defined only insofar as it applies to discretionary decisions, but given no definition insofar as it applies to findings of fact or law, and given the inherently developmental nature of the common law, which is implicitly referenced in s. 58(2)(a) of the ATA, it follows that the deferential standard of review articulated in Dunsmuir in para. 47 under the rubric of “reasonableness” is that which applies to the…case at bar.

[54] Like Truscott J. in Lavigne, I conclude that the standard mandated by the ATA is that which existed at common law prior to the issuance of the decision in Dunsmuir. Dunsmuir had the effect of abolishing patent unreasonableness, and therefore the definition of patent unreasonableness must be that immediately prior to its abolition. I note that only s. 59 of the ATA contains reference to a reasonableness standard, indicating a differentiation between s. 58, for tribunals operating under a privative clause, and s. 59, for tribunals operating without a privative clause. I also note that the purpose of Dunsmuir was not to pave the way for more intrusive review of tribunal decisions, and that the single standard of reasonableness is now analyzed on a spectrum of deference. At one end of the spectrum there still lies a degree of deference similar to that mandated under the former standard of patent unreasonableness. It may be, therefore, that the two positions are not irreconcilable, especially in light of Mr. Justice Binnie’s comments set out in para. 24 above.

Standard of Review: Acting Fairly

[55] There is a further standard of review to be determined arising from Mr. Asquini’s submission that vice chair MacArthur, pursuant to the common law rules of natural justice and procedural fairness, ought not to have heard Mr. Asquini’s appeal on the basis of bias, reasonable apprehension of bias, or conflict of interest.

[56] The appropriate standard of review applicable to the question of whether vice chair MacArthur should have recused himself from hearing Mr. Asquini’s appeal is that of fairness, as described in s. 58 (2)(b) of the ATA:

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

(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 …

[57] I conclude that in the instant case the appropriate standard of review with respect to the common law rules of natural justice and procedural fairness is whether, in all of the circumstances, vice chair MacArthur acted fairly. As noted in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4^th) 193, the application of a duty of fairness is triggered where an administrative decision affects the rights, privileges or interests of an individual. Madam Justice L’Heureux-Dube writing for the majority In Baker wrote at para. 21:

… “[T]he concept of procedural fairness is eminently variable and its content is to be decided in the specific contest of each case.” All of the circumstances must be considered in order to determine the content of the duty of procedural fairness …

[58] She continued at para 22:

… the purpose of the participatory rights contained with the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

[59] Although the ATA describes the question as that of acting fairly, the deference owed to the tribunal is at a level consistent with the correctness standard of review. Thus in applying the fairness standard I am required to undertake my own analysis of the question, without deference to the tribunal’s decision. If I find to the contrary, I am obliged to substitute my own view and provide the correct answer.

[60] If I conclude that vice chair MacArthur acted fairly in all the circumstances, it follows that the Reconsideration Decision was correct in concluding that vice chair MacArthur acted fairly.

Whether Vice Chair MacArthur Acted Fairly

[61] I intend to address first Mr. Asquini’s contention that vice chair MacArthur should have declined to hear his appeal on the grounds of bias, reasonable apprehension of bias, or conflict of interest, and that vice chair MacArthur wrongly decided to preside at the August 2004 tribunal and in so doing failed to act fairly.

[62] Vice chair MacArthur’s involvement in Mr. Asquini’s claim first occurred after the April 20, 1993 denial by the Board of Mr. Asquini’s application to reopen his claim arising from the April 27, 1990 workplace injury. Mr. Asquini appealed that decision and the matter was referred to the review board of which vice chair MacArthur was then a member. The review board on February 4, 1994 denied the appeal, concluding it was bound by a previous review board decision that Mr. Asquini suffered only a minor injury in the April 27, 1990 incident. In the previous decision, the review board found that no wage loss benefits were payable to Mr. Asquini, concluding that his disability arose from a non-compensable deterioration of his cervical spine unrelated to what it described as a minor compensable injury.

[63] Mr. Asquini appealed the 1994 review board decision. The appeal division on June 23, 1994 allowed the appeal, concluding that Mr. Asquini’s deteriorating condition had been asymptomatic until the April 27, 1990 incident and that the injury accelerated or aggravated the condition, rendering it compensable.

[64] Mr. Asquini asserts that vice chair MacArthur in the Original Decision of November 1, 2004 termed his 1990 injury as an “extremely minor injury”, thereby adopting the 1994 review board’s finding that he had suffered just a “minor injury” and that, in describing the injury as such, vice chair MacArthur thereby denied both the findings of subsequent reviews finding him entitled to compensation for his injury as well as the conclusions reached by the 1999 Medical Review Panel that he had suffered injury. Mr. Asquini submits that the vice chair’s continued reliance on the 1994 decision in which he participated reflected either actual bias or exhibited reasonable apprehension of bias.

[65] Mr. Asquini further asserts that vice chair MacArthur should have removed himself from the 2004 WCAT panel after Mr. Asquini’s then representative Ms. Murtagh raised questions of personal issues between herself and vice chair MacArthur which developed when she too was a WCAT vice chair. Mr. Asquini says vice chair MacArthur’s failure or refusal to remove himself from the hearing, in spite of his uneasy relationship with Ms. Murtagh, amounted to a breach of the common law rules of natural justice and procedural fairness, constituted actual bias or raised the reasonable apprehension of bias, and placed the vice chair in a conflict of interest.

[66] Mr. Asquini’s submission that vice chair MacArthur should have declined to hear his appeal arose only after the vice chair filed his Original Decision dismissing Mr. Asquini’s appeal.

[67] Before the appeal was heard on August 11, 2004, Ms. Murtagh advised the chair of the WCAT that she would be representing workers in appeals before the WCAT and requesting that six WCAT vice chairs not be assigned to hear appeals in which she would be representing the worker. A senior vice chair responded that two of the vice chairs named had already declared a conflict and would not be assigned appeals involving Ms. Murtagh until December 19, 2004, but given that six months had elapsed the senior vice chair was of the opinion that in the absence of additional factors, Ms. Murtagh’s involvement in appeals before the other four vice chairs would not give rise to a conflict of interest or reasonable apprehension of bias.

[68] Ms. Murtagh on June 17, 2004 wrote that in her view a real conflict with any of the other four named vice chairs would not be resolved “because of their personal negative attitude towards me”. The WCAT chair responded on July 5 that they did not consider the information provided by Ms. Murtagh would give rise to a reasonable apprehension of bias or a possible conflict of interest, and referred her to the WCAT’s Manual of Rules, Practices and Procedures (“WCAT’s Manual of Rules”), Item No. 23.00, which states:

… the question of determining whether the appearance of a particular representative before a vice chair would give rise to a conflict of interest or reasonable apprehension of bias is a question for the vice chair to consider and decide.

[69] Ms. Murtagh’s response of July 27 stated that she had learned that vice chair MacArthur was scheduled to hear Mr. Asquini’s appeal and requested a different vice chair be assigned to the appeal, stating that there was a negative personal relationship between herself and the vice chair and she believed that the negativity on the part of the vice chair would carry over into his decision. The WCAT’s vice chair responsible for quality assurance responded on July 27 and advised that the WCAT chair had declined her request for a different vice chair, writing:

We are confident that all WCAT vice chairs can act with professionalism and neutrality in deciding appeals, regardless of any historical personal issues which arose while you were at the Review Board and at WCAT.

[70] At the hearing on August 11, 2004, vice chair MacArthur raised his 1994 involvement in Mr. Asquini’s claim and neither Ms. Murtagh nor Mr. Asquini brought forward any concern either about his previous involvement or Ms. Murtagh’s belief that her negative relationship with the vice chair would carry through to his decision.

[71] No transcript of the August 11, 2004 hearing was filed. However, vice chair Morton wrote in his Reconsideration Decision that he listened to the audio recording of the August 11 hearing and that it was vice chair MacArthur who in his introductory remarks mentioned that he had heard a prior appeal by Mr. Asquini, before requesting Ms. Murtagh for her opening remarks on behalf of Mr. Asquini.

[72] There is no evidence that after vice chair MacArthur mentioned his earlier involvement in Mr. Asquini’s claim either Mr. Asquini or Ms. Murtagh voiced any concern with vice chair MacArthur hearing the appeal or suggested that the vice chair recuse himself because of his earlier involvement with Mr. Asquini’s claim.

[73] I do not find the vice chair MacArthur’s descriptions of Mr. Asquini’s injury as minor or extremely minor as a basis upon which to conclude there was bias or a reasonable apprehension of bias on the part of vice chair MacArthur who in his Original Decision acknowledged the binding nature of the Certificate dated December 22, 1999, although vice chair MacArthur did not accept the MRP’s accompanying narrative as binding. In acknowledging the MRP certificate, I conclude that the vice chair accepted the ramifications of the April 27, 1990 injury which initially did appear to be minor, with the full ramifications of the injury becoming clear some years later.

[74] From my analysis of the evidentiary foundation upon which Mr. Asquini grounds his allegations of bias, reasonable apprehension of bias, or conflict of interest, I conclude that vice chair MacArthur acted in a procedurally fair manner and in accord with the common law rules of natural justice and procedural fairness. Vice chair MacArthur at the commencement of the 2004 appeal hearing properly brought forward his 1994 involvement in Mr. Asquini’s claim. No objection was taken to his continuing to hear the appeal and I infer from the fact that he continued with the hearing that he saw no basis on which he ought to decline to hear the appeal. Mr. Asquini’s representative did not raise at the hearing what she later asserted was a difficult personal relationship with vice chair MacArthur, an assertion which formed much of the argument before vice chair Morton.

[75] There is no evidence that vice chair MacArthur knew of the correspondence between Ms. Murtagh and the chair of the WCAT. While Ms. Murtagh viewed her relationship with vice chair MacArthur as uneasy or difficult, there was no material either in the Board’s file or in the other material filed in support of Mr. Asquini’s petition which suggests that vice chair MacArthur viewed his relationship with Ms. Murtagh in the same way she did. There is no evidence that would suggest that vice chair MacArthur reached his Original Decision as a result of either his earlier dealings with Ms. Murtagh or his contact with Mr. Asquini’s file some 10 years earlier. I find vice chair MacArthur acted fairly and in accord with the common law rules of natural justice and procedural fairness throughout the events leading to the Original Decision on November 1, 2004.

[76] Having found that vice chair MacArthur acted fairly, it follows that vice chair Morton’s decision was correct in finding that vice chair MacArthur acted fairly.

The Original Decision: Patently Unreasonable?

[77] I turn next to Mr. Asquini’s assertion that vice chair MacArthur’s Original Decision ought to be quashed as patently unreasonable and his appeal remitted to the WCAT for rehearing. If I conclude that the Original Decision is not patently unreasonable then, as submitted by counsel for WCAT, that result inevitably leads to the conclusion that the Reconsideration Decision was also correctly decided. If the Original Decision is patently unreasonable then it follows that the Reconsideration Decision is also wrongly decided and it too must be quashed. The aforementioned conclusion as to the disposition of this judicial review relies on my earlier finding that Mr. Asquini has failed to establish bias, apprehension of bias or conflict of interest on the part of vice chair MacArthur in hearing and reaching a decision with respect to Mr. Asquini’s appeal.

[78] Earlier in these reasons I found that the common law as it existed immediately before Dunsmuir governs the test for patent unreasonableness as found in the ATA. An explanation of the test is found in Southam. The Supreme Court of Canada, in describing how to recognize a patently unreasonable decision, stated at para. 57:

[57] The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p.963, "[i]n the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'". This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. See National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1370, per Gonthier J.; see also Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 47, per Cory J. But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.

[79] In McIntyre, the Supreme Court of Canada has described patently unreasonable decisions as ones that are “clearly irrational” (Canada (A.G.) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-964, 101 D.L.R. (4^th) 673); “not in accordance with reason” (Centre communautaire juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, 138 D.L.R. (4^th) 193, at para. 9-12); “so flawed that no amount of curial deference can justify letting it stand” (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 52); and where “the result…almost border[s] on the absurd” (Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, at para. 18).

[80] In Speckling, the British Columbia Court of Appeal at para. 37 approved the chambers judge’s description of patently unreasonable in the following terms:

… [A] decision is not patently unreasonable because the evidence is insufficient. It is not for the court on judicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence drawn from these facts. A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is “openly, clearly, evidently unreasonable”, can it be said to be patently unreasonable.

[81] In Kovach v. British Columbia (Workers’ Compensation Board), [1999] 1 W.W.R. 498, 52 B.C.L.R. (3d) 98 (C.A.), Donald J.A. in dissent addressed the jurisdiction of the Workers’ Compensation Board and whether its decision with respect to Ms. Kovach was patently unreasonable. Mr. Justice Donald stated, at para. 26:

. . . I think that the review test must be applied to the result not to the reasons leading to the result. In other words, if a rational basis can be found for the decision it should not be disturbed simply because of defects in the tribunal's reasoning.

[82] The Supreme Court of Canada allowed the appeal in Kovach substantially for the reasons of Donald J.A., its decision being found at (2000) SCC 3, 184 D.L.R. (4^th) 415.

[83] I turn to the determination of whether vice chair MacArthur’s decision was patently unreasonable, noting that it is the result, not the reasoning, which must be reviewed for patent unreasonableness. In Canada Safeway Ltd. v. British Columbia (Workers’ Compensation Board), (1998) 59 B.C.L.R. (3d) 317, 114 B.C.A.C. 261, the court, at para. 23, stated:

The Appeal Division may have arrived at its decision by questionable reasoning but it is the result which must be tested for patent unreasonableness.

[84] And in Wyant v. British Columbia (Workers’ Compensation Board), 2006 BCSC 680, Rogers J. wrote:

36 The reviewing court is not obliged to minutely examine the tribunal’s logic or its reasoning process ….

[85] In summary, when applying the standard of patent unreasonableness, it is not open to me to reweigh the evidence. Further, only the conclusion of WCAT is open to review, not the reasons leading to the result. If there is a rational basis for the decision, it should not be disturbed simply because of defects in WCAT’s reasoning: see Basura v. British Columbia (Workers’ Compensation Board), 2005 BCSC 407, paras. 34, 35 and 37, Wu v. British Columbia (Workers’ Compensation Board), 2005 BCSC 1449, at para. 8, and Kovach.

[86] Mr. Asquini asserts that the Original Decision which denied him a loss of earnings pension is patently unreasonable as vice chair MacArthur had no jurisdiction and erred in law:

1. in failing to apply binding decisions from both the Medical Review Panel and the review board; and

2. in reaching findings of fact that are not supported or are contrary to the evidence, including

(a) the failure to give any weight or sufficient weight to an employability assessment prepared at the request and filed on behalf of Mr. Asquini, accepting a flawed and incomplete employability assessment prepared by the Board;

(b) the failure to give any weight or sufficient weight to Mr. Asquini’s uncontradicted evidence; and

(c) the failure to correct factual errors contained in Mr. Asquini’s file with the Board, relying instead on incorrect assumptions of fact.

[87] The decision which led to the hearing before vice chair MacArthur in August 11, 2004 was that provided on December 10, 2003 by a review officer of the Workers’ Compensation review division, in which the review officer concluded that Mr. Asquini was not entitled to a loss of earnings pension for the 1990 injury. Mr. Asquini asserts that in the Original Decision vice chair MacArthur erred in law and was without jurisdiction in that he failed to apply binding decisions from both the MRP, being the Certificate the MRP filed on December 22, 1999, and the August 27, 2002 decision of the Board’s Review Board with respect to the effect of the MRP certificate.

[88] The WCA at s. 65 provided as follows:

65. A certificate of a (Medical Review) panel under sections 58 5o 64 is conclusive as to the matters certified and is binding on the board. The certificate is not open to question or review in any court . . .

[89] In its certificate, the MRP reaches certain conclusions with respect to Mr. Asquini’s compensable injury, including linking the 1990 injury to his disability, noting the relationship between the compensable injury and Mr. Asquini’s asymptomatic cervical spondylosis, the nature of the disability, and that the functional impairment resulted from the disability. The certificate addresses medical matters, but a letter from the MRP also dated December 22, 1999 provided a 13-page narrative report which reviewed Mr. Asquini’s medical history and his involvement with the Board. The narrative also includes the impact of the disability upon Mr. Asquini’s employability as a crane operator.

[90] The MRP’s Certificate was previously considered by review board vice chair Dana G. Brinley, acting as a single member panel, in WCAT Appeal No. 902696-F dated August 27, 2002. Mr. Asquini brought the appeal, questioning whether the MRP Certificate was properly implemented and whether he was more disabled than previously recognized. The vice chair in allowing Mr. Asquini’s appeal wrote the following about the MRP certificate at p. 2:

With respect, the panel does not share the Disability Awards Claims Adjudicator’s view that the Medical Review Panel’s comments in the “narrative”, regarding the worker’s disability for his own occupation as a heavy duty crane operator is beyond the scope and jurisdiction of the Medical Review Panel.

[91] Continuing at p.3:

In the panel’s view the Medical Review Panel clearly has certified the worker’s compensable medical functional limitations vis a vis body function and by extension employability which must be acted upon by the Board as prescribed by the [Workers’ Compensation] Act.

[92] The MRP’s certificate was also considered by WCAT vice chair Ralph D. McMillan in his decision filed September 12, 2005 as WCAT-2005-04761 which involved Mr. Asquini’s claim to chiropractic treatment, but I do not find in his decision a conclusive finding that the MRP’s narrative was part of its Certificate and, therefore, binding.

[93] While vice chair MacArthur in the Original Decision acknowledged the binding nature of the Certificate, he declined to find as binding the MRP’s narrative which was forwarded on the same date but separate from the certificate, a finding contrary to vice chair Brinley’s earlier conclusion that the MRP’s narrative was binding.

[94] The WCA at s. 65 specifically states that only the certificate is binding and makes no mention as to the effect of the narrative. The distinction between the certificate and narrative appears to have been noted by the MRP’s careful distinction between its certificate and narrative, responding as it did in two separate letters. However, while I consider that the narrative does not have the same binding nature of a certificate, it might be anticipated that a medically-based narrative authored by those with the expertise required to be named to a MRP would offer a WCAT panel assistance when considering a claim. In the Original Decision, the vice chair referred to the MRP’s narrative and concluded that the MRP, although expert in the ascertaining Mr. Asquini’s disability, did not have the background necessary to determine the effect of the disability on a worker’s ability to operate a crane.

[95] Although vice chair MacArthur questions the MRP’s ability to link Mr. Asquini’s disability to his ability to operate a crane, he accepted the contents of the certificate as binding as he was required to do pursuant to the WCA.

[96] Mr. Asquini further submits that vice chair MacArthur erred in law and lacked jurisdiction in reaching findings of fact which are unsupported or contrary to the evidence. I note before discussing this submission that Mr. Asquini must establish that, upon a review of the evidence, there is no rational basis for the conclusion reached by WCAT.

[97] Mr. Asquini asserts that vice chair MacArthur failed to give any weight or sufficient weight to the employability assessment report prepared and filed on behalf of Mr. Asquini, preferring what Mr. Asquini describes as a flawed and incomplete employability assessment prepared by the Board vocational rehabilitation consultant. The vice chair at p. 3 of the Original Decision first referred to the report prepared by the Board’s consultant, stating that the employability assessment involved a review of Mr. Asquini’s claim/medical history from which the consultant concluded that while Mr. Asquini’s disability precluded him from operating a crane which required him to look upwards while using his hands, he could have operated other heavy equipment, particularly with accommodations to increase the ease with which he operated the equipment. The consultant concluded that Mr. Asquini’s earnings as a heavy duty equipment operator would have been greater than the amount earned by Mr. Asquini as a crane operator and that work was available to him as a heavy duty equipment operator.

[98] The vice chair at pp. 6-7 noted Mr. Asquini’s response to the report by the Board’s consultant and his reference to the report prepared by his own consultant which mentioned flaws in the report from the board’s consultant. Mr. Asquini submitted that in weighing the evidence contained in the two reports the vice chair should prefer and rely on the investigation, analysis, and conclusions reached by Mr. Asquini’s consultant. The vice chair at p. 9 considered the report from Mr. Asquini’s consultant as

… long on analyzing various jobs … however, short of practicality. Its conclusions suggest to me that the job demands analysis would render many in the heavy equipment workforce unemployable if strictly followed.

By comparison, I find that the Board’s employability assessment was well rooted in evidence contained in the worker’s file and its conclusion drawn from that evidence. I am not concerned by the vocational rehabilitation consultant’s decision not to interview the worker; the recent WCAT hearing for example, added little to what was already known about the issues and evidence in this file.

[99] The vice chair stated at p. 10:

I also prefer the Board’s employability assessment over that of the worker’s for the reasons set out. I am not persuaded by this worker’s evidence that he is unemployable and entitled to a loss of earnings. I am satisfied that the vocational rehabilitation consultant’s employability captures, in sufficient detail, the reasons why.

[100] In reaching his conclusion with respect to the employability assessments, I note that the vice chair at p. 8 of his decision referred to having reviewed Mr. Asquini’s claim history from 1990, and throughout the decision are references to that history. It was well within the vice chair’s exercise of his jurisdiction to prefer the report of the board’s consultant, a jurisdiction acknowledged by Mr. Asquini when he submitted that the vice chair should prefer the evidence of his consultant over that of the board’s consultant.

[101] Mr. Asquini submits that vice chair MacArthur failed to give any weight or sufficient weight to his uncontradicted evidence. However, the Original Decision at p. 9 notes that the WCAT hearing added little to what was already known about the issues and evidence in the Board’s file which I infer includes the evidence provided at the August 11, 2004 hearing by Mr. Asquini. The vice chair also stated at p. 9 of his decision that he was not persuaded by Mr. Asquini’s evidence that he is unemployable and entitled to a loss of earnings. Page10 contains the comment that neither the worker nor the worker’s representative provided convincing evidence or argument that the worker is unfit to operate other forms of equipment. The aforementioned references indicate that the vice chair considered Mr. Asquini’s evidence and found it wanting.

[102] Mr. Asquini further submits that vice chair MacArthur erred in law and lacked jurisdiction in failing to correct factual errors contained in Mr. Asquini’s file with the Board, relying instead on incorrect assumptions of fact. The Board’s file started in 1990, some 14 years before Mr. Asquini’s appeal came before vice chair MacArthur. It is not for this court to pick its way through the file to determine what if any errors are contained in the Board’s file. The question for this court is whether there is a basis in the facts found in the file for vice chair MacArthur to reach the result expressed in the Original Decision and I consider that there were facts sufficient for the vice chair to arrive at the result he did.

[103] In conclusion, I find that Mr. Asquini has failed to establish as patently unreasonable the November 1, 2004 decision of vice chair MacArthur in which he determined that Mr. Asquini was not entitled to a loss of earnings pension. Mr. Asquini has failed to show that WCAT’s decision was clearly, evidently or openly unreasonable. I dismiss Mr. Asquini’s application to quash the vice chair’s Original Decision.

The Reconsideration Decision

[104] I turn next to the Reconsideration Decision of February 16, 2007. I stated earlier that if I concluded that the Original Decision was not patently unreasonable, then the Reconsideration Decision was correctly decided. As I have not found the Original Decision patently unreasonable, it follows that the Reconsideration Decision was correct.

[105] In summary fashion, my conclusions are as follows:

· Sections 58 and 59 of the Administrative Tribunals Act are valid legislation and not ultra vires or unconstitutional as a result of the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick.

· The petitioner failed to establish that the WCAT vice chair who heard and rendered the WCAT’s Original Decision of November 1, 2004 was biased, or that there was an apprehension of bias, or conflict of interest on his part. I find that he acted fairly and was not in breach of the common law rules of natural justice and procedural fairness.

· The WCAT vice chair who heard and rendered the WCAT’s Reconsideration Decision of February 16, 2007 correctly concluded that the petitioner had failed to establish bias, apprehension of bias or conflict of interest on the part of the author of the Original Decision.

· WCAT’s Original Decision was not patently unreasonable and ought not be disturbed.

· WCAT’s Reconsideration Decision was correct.

· The petitioner’s application is dismissed.

[106] WCAT submits that there is no evidence of misconduct or perversity in the proceedings before the tribunals and that no costs should be awarded against it. WCAT does not seek costs against Mr. Asquini. I conclude that the parties, WCAT, the Attorney General for British Columbia, and Mr. Asquini will bear their own costs.

BLAIR J.

Citation:	*Asquini v. British Columbia (Workers' Compensation Appeal Tribunal),*
	2009 BCSC 62