COURT FILE NO. 36300

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL)

BETWEEN:

WORKERS’ COMPENSATION APPEAL TRIBUNAL Appellant (Respondent) - and -

FRASER HEALTH AUTHORITY, KATRINA HAMMER, PATRICIA SCHMIDT, and ANNE MACFARLANE Respondent (Respondent) AND BETWEEN: KATRINA HAMMER, PATRICIA SCHMIDT, and ANNE MACFARLANE Appellants (Appellants) - and -

WORKERS’ COMPENSATION APPEAL TRIBUNAL and FRASER HEALTH AUTHORITY Respondents (Respondents)

ATTORNEY GENERAL OF CANADA, ONTARIO NETWORK OF INJURED WORKERS' GROUPS AND INDUSTRIAL ACCIDENT VICTIMS' GROUP OF ONTARIO, COMMUNITY LEGAL ASSISTANCE SOCIETY AND BRITISH COLUMBIA FEDERATION OF LABOUR, ATTORNEY GENERAL FOR ONTARIO INTERVENERS

FACTUM OF THE INTERVENERS COMMUNITY LEGAL ASSISTANCE SOCIETY AND BRITISH COLUMBIA FEDERATION OF LABOUR (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

ETHOS LAW GROUP LLP JURISTES POWER Barristers and Solicitors Barristers and Solicitors 702 – 2695 Granville Street 130 Albert Street, Suite 1103 Vancouver, BC V6H 3H4 Ottawa, ON K1P 5G4 Telephone: (604) 569-3022 Telephone: (613) 702-5560 Facsimile: (866) 591-0597 Facsimile: (613) 702-5560 Email: [email protected] Email: [email protected] Monique Pongracic-Speier Justin Dubois Counsel for the Interveners, Ottawa Agent for the Counsel for the Community Legal Assistance Society and Interveners, Community Legal Assistance British Columbia Federation of Labour Society and British Columbia Federation of Labour

WORKERS' COMPENSATION APPEAL BORDEN LADNER GERVAIS LLP TRIBUNAL Barristers and Solicitors 150-4600 Jacombs Road World Exchange Plaza Richmond, BC V6V 3B1 100 Queen Street, Suite 1300 Telephone: (604) 664-7800 Ottawa, ON. K1P 1J9 Facsimile: (604) 713-0443 Telephone: (613) 237-5160 Email: [email protected] Facsimile: (613) 230-8842 Email: [email protected]

Timothy Martiniuk Nadia Effendi Counsel for the Appellant, Ottawa Agent for Counsel for the Appellant, Workers’ Compensation Appeal Tribunal Workers’ Compensation Appeal Tribunal

HARRIS & COMPANY GOWLING LAFLEUR HENDERSON LLP Barristers and Solicitors Barristers and Solicitors 550 Burrard Street, Suite 1400 160 Elgin Street, Suite 2600 Vancouver, BC V6C 2B5 Ottawa, ON K1P 1C3 Telephone: (604) 684-6633 Telephone: (613) 786-0171 Facsimile: (604) 684-6632 Facsimile: (613) 788-3587 Email: [email protected] Email: [email protected] [email protected] Nazeer T. Mitha Jeffrey W. Beedell Dianne D. Rideout Ottawa Agent for Counsel for the Respondent, Counsel for the Respondent, Fraser Health Authority Fraser Health Authority

HEALTH SCIENCES ASSOCIATION OF GOWLING LAFLEUR HENDERSON LLP BRITISH COLUMBIA Barristers and Solicitors 180 East Columbia Street 160 Elgin Street, Suite 2600 New Westminster, BC V3L 0G7 Ottawa, Ontario K1P 1C3 Telephone: (604) 617-0994 Ext: 505 Telephone: (613) 786-0211 Facsimile: (604) 515-8889 Facsimile: (613) 788-3573 Email: [email protected] Email: [email protected] Randall Noonan Matthew S. Estabrooks Tonie Beharell Ottawa Agent for Counsel for the Appellants, Counsel for the Appellants, Katrina Hammer, Patricia Schmidt and Katrina Hammer, Patricia Schmidt and Anne Macfarlane Anne Macfarlane

ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA 130 King Street West, Suite 3400 50 O'Connor Street, Suite 500, Room 557 The Exchange Tower, Box 36 Ottawa, ON K1A 0H8 Toronto, ON M5X 1K6 Telephone: (613) 670-6290 Telephone: (416) 973-4111 Facsimile: (613) 954-1920 Facsimile: (416) 952-4518 Email: [email protected] Email: [email protected]

Christine Mohr Christopher M. Rupar Alexander Pless Ottawa Agent for Counsel for the Intervener, Counsel for the Intervener, Attorney General of Canada Attorney General of Canada

IAVGO COMMUNITY LEGAL CLINIC COMMUNITY LEGAL SERVICES- 489 College Street, Suite 203 OTTAWA CARLETON Toronto, ON M6C 1A5 1 Nicholas Street, Suite 422 Telephone: (416) 924-6477 Ottawa, ON K1N 7B7 Facsimile: (416) 924-2472 Telephone: (613) 241-7008 Ext: 224 Email: [email protected] Facsimile: (613)241-8680 Email: [email protected]

Ivana Petricone Michael Bossin Maryth Yachnin Ottawa Agent for Counsel for the Interveners, Joel Schwartz Ontario Network of Injured Workers' Groups and Counsel for the Interveners, Industrial Accident Victims' Group of Ontario Ontario Network of Injured Workers' Groups and Industrial Accident Victims' Group of Ontario

ATTORNEY GENERAL OF ONTARIO BURKE-ROBERTSON 720 Bay Street, 8th Floor Barristers and Solicitors Toronto, ON M5G 2K1 441 MacLaren Street, Suite 200 Telephone: (416) 326-4155 Ottawa, ON K2P 2H3 Facsimile: (416) 326-4181 Telephone: (613) 236-9665 Email: [email protected] FAX: (613) 235-4430 Email: [email protected]

Sara Blake Robert E. Houston, Q.C. Sandra Nishikawa Ottawa Agent for the Intervener, Counsel for the Intervener, Attorney General of Ontario Attorney General of Ontario

TABLE OF CONTENTS

PAGE NO.

PART I – STATEMENT OF FACTS ...... 1

PART II – ISSUES ...... 2

PART III – ARGUMENT ...... 3

A. Functus officio and reopening at ...... 3 B. The majority’s approach to reopening is problematic, analytically and practically ...... 4 C. The power of a tribunal to reopen to correct patently unreasonable error is consistent with the rationales for the doctrine of functus officio ...... 5 D. If the common law does not currently permit the WCAT and tribunals like it to reopen decisions to correct patently unreasonable errors, it should evolve to do so ..... 7 E. Functus officio should be changed to enhance access to justice ...... 8 F. Allowing tribunals discretion to reopen matters to correct patently unreasonable errors is consistent with contemporary remedies ...... 9 G. Allowing the WCAT to reopen a decision to correct a patently unreasonable error is consistent with the scheme and intent of the WCA ...... 10 H. Affirming a power for tribunals to reopen patently unreasonable decisions upholds the rule of law in administrative justice ...... 10

PART VI – TABLE OF AUTHORITIES ...... 11

PART VII – STATUTES, REGULATIONS, RULES ...... 13

A. Workers’ Compensation Act, R.S.B.C. 1996, c. 492 ...... 13

1

PART I – STATEMENT OF FACTS

1. This Court recently affirmed that “Ensuring access to justice is the greatest challenge to the rule of law in Canada today” and that a “culture shift” is necessary to promote timely and affordable access to civil justice.1 These observations are equally true in respect of Canada’s system of administrative justice.

2. Many more individuals have their rights, privileges and obligations determined by administrative tribunals than by courts.2 For example, the Workers’ Compensation Appeal Tribunal (the “WCAT”) has issued about 5,000 decisions annually since 2003.3 These mostly arise from appeals for benefits by workers or the dependents of deceased workers under the Workers’ Compensation Act, R.S.B.C. 1996, c. 492 (the “WCA”).4

3. Occasionally, the WCAT makes an error going to jurisdiction – a patently unreasonable error – in an appeal. Rarely will the individual(s) affected have the means to pursue . Many workers or dependents are unrepresented or only have the assistance of a lay advocate. Few have the money to retain counsel.5 Most do not have the legal knowledge necessary to advance their own interests at court.6 The tribunal’s error will stand and justice will be denied. However, if the tribunal can correct its own error, justice can be done.

4. Section 253.1(5) of the WCA preserves the WCAT’s ability at common law, “on request of a party, to reopen an appeal in order to cure a jurisdictional defect”.7 Between 2003 and late 2014,

1 Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at ¶¶1 – 2, Interveners’ Book of Authorities (IBOA), Tab 8. 2 Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 (“Martin”) at ¶29, IBOA, Tab 12. See also Lorne Sossin and Andrea Hill, “Social Rights and Administrative Justice” in Martha Jackman and Bruce Porter, eds., Advancing Social Rights in Canada (Toronto: Irwin Law, 2014) 343 at 348 – 349, IBOA, Tab 25. 3 Affidavit of Teresa White, made June 11, 2014 (“White Affidavit”) at ¶3, Joint Appeal Record (“JAR”), vol. 5, p. 64. 4 Affidavit of Aleem Bharmal, made June 24, 2014 (“Bharmal Affidavit”) at ¶10 and Ex. “B”, pp. 9, 14, 19, 24 and 29, JAR, vol. 5, pp. 105, 117, 122, 127, 132 and 137. 5 White Affidavit at ¶15, JAR, vol. 5, p. 67; Bharmal Affidavit at ¶11, JAR, vol. 5, p. 105. 6 Bharmal Affidavit at ¶11, JAR, vol. 5, p. 105. 7 The WCAT has the ability to consider and apply the common law in an appeal pursuant to s. 250(1) of the WCA. 2 the WCAT permitted claimants to apply to reopen appeals for true jurisdictional errors, for patently unreasonable errors on matters within the WCAT’s exclusive jurisdiction, and for breaches of the duty of procedural fairness. The WCAT’s process to reopen and reconsider decisions offered workers and their dependents a simpler and less expensive avenue of recourse against flawed decisions than judicial review.

5. This case was decided by the British Columbia Court of Appeal in December 2014. Chiasson J.A., for the majority, held that s. 253.1(5) of the WCA maintains the WCAT’s ability to remedy true jurisdictional errors within the meaning of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and to remedy procedural unfairness, but does not permit the tribunal to reopen an appeal due to patently unreasonable error.8 Newbury J.A., for herself and Bennett J.A., dissenting, would have held that the WCAT has the power under s. 253.1(5) of the WCA to cure procedural unfairness, true errors of jurisdiction and patently unreasonable errors.9

6. The Community Legal Assistance Society and the British Columbia Federation of Labour (the “interveners”) say that, at common law, the WCAT and administrative tribunals like it have discretion to reopen a matter, on application, to cure a patently unreasonable error in the tribunal’s decision-making process. Alternatively, the common law should evolve to permit tribunals empowered to decide questions of law to reopen their decisions, on application, to correct patently unreasonable errors.

PART II – ISSUES

7. The interveners agree with the WCAT that the tribunal retains the power at common law, as confirmed by s. 253.1(5) of the WCA, to reopen, reconsider and “cure” a decision for patently unreasonable error. A patently unreasonable error is a common law “jurisdictional defect” within the meaning of s. 253.1(5) of the WCA. The common law doctrine of functus officio does not foreclose a tribunal from reopening one of its decisions to repair a jurisdictional defect. However, if the common law does not currently permit tribunals with the power to decide questions of law to reopen a decision for patently unreasonable error, it should evolve to give such tribunals the discretion to do so.

8 Reasons for Judgment (“Reasons”) at ¶¶158 – 161, JAR, vol. 1, pp. 166 – 167. 9 Reasons at ¶67, JAR, vol. 1, p. 135. 3

PART III - ARGUMENT A. Functus officio and reopening at common law 8. The doctrine of functus officio is a “common law procedural principle”.10 It applies to administrative tribunals as a matter of legal policy.11

9. Chandler v. Alberta Association of Architects held that, generally, once a tribunal has reached a final decision on a matter properly before it, it may only change the decision if authorized by statute to do so, to correct a slip, or if the tribunal has erred in expressing its manifest intention.12 Consistent with existing law, Chandler also held that the doctrine of functus officio does not forbid the reopening of a tribunal decision that is a nullity due to, e.g., action or a breach of .13 This caveat to the doctrine of functus officio recognizes that a decision made ultra vires or in breach of the requirements of natural justice is a nullity,14 and the decision “is, strictly speaking, not a decision at all…” so there is nothing to “reopen”.15

10. Chandler counselled that the doctrine of functus officio must be applied flexibly in relation to administrative decision-makers because “justice may require the reopening of proceedings to provide relief which would otherwise be available on appeal”. The Court also held that the doctrine should not be strictly applied where the enabling statute indicates that the tribunal may reopen a decision “to discharge the function committed to it”.16

B. The majority’s approach to reopening is problematic, analytically and practically

11. The chief analytical difficulty with the approach to functus officio adopted by the majority of the Court of Appeal is that the WCAT’s ability to reopen a matter will tend to turn on how the

10 Doucet-Boudreau v. Nova Scotia (Min. of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at ¶53, IBOA, Tab 6. 11 Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 (“Chandler”) at 862, IBOA, Tab 5. 12 Ibid. at 860 and 861. 13 Ibid. at 863; see also Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330 at 340, IBOA, Tab 17. 14 Chandler at 862 – 863, IBOA, Tab 5. 15 Michael Akehurst, “Revocation of Administrative Decisions” (1982) Public Law 613 at 619 – 620, IBOA, Tab 26; see also Minister for Immigration v. Bhardwaj (2002), 209 C.L.R. 597 (H.C.A.) (“Bhardwaj”) at ¶¶51 – 53 per Gaudron and Gummow JJ, IBOA, Tab 11. 16 Chandler at 862, IBOA, Tab 5. 4 tribunal’s error is characterised. For example, a tribunal like the WCAT may be required at common law and by statute to follow certain procedures in an appeal, such as holding an oral hearing where credibility is at stake.17 A default in the obligation may be considered a breach of the requirements of procedural fairness or a patently unreasonable error, due to a failure to take statutory requirements into account.18 If characterised as a breach of the duty of procedural fairness, the tirbunal may correct the error by reopening the matter and issuing a new decision. However, if the error is seen as a patently unreasonable error, the tribunal may not reopen the matter to correct the defect. It is nonsensical that a tribunal should be able to reopen a matter if an error is characterised as a breach of natural justice, but not if the same error is characterised as a patently unreasonable error of law.

12. A comparative law example also illustrates the malleability of the characterisation process. In Minister for Immigration and Multicultural Affairs v. Bhardwaj, the Australian High Court held that the Immigration Review Tribunal was entitled – even required – to reopen a matter decided in breach of statutory requirements concerning the conduct of the hearing. The corrected decision was held to be valid.19 The majority of the Court characterised the tribunal’s error as “jurisdictional” in nature. For this reason, the tribunal was not foreclosed by the doctrine of functus officio from reopening the decision. However, had the same error been committed in British Columbia by the WCAT, it would be classified as patently unreasonable, pursuant to s. 58(3)(d) the ATA.20 On the reasoning of the majority in the case at bar, the defect would not be jurisdictional, and the WCAT would be barred from reopening the decision. There is no principled basis for these disparate approaches.

13. If the operation of the doctrine of functus officio depends on the light in which the tribunal’s error is cast, it will be problematic for individuals unversed in the metaphysics of administrative law. Benefits claimants are typically ill-equipped to moot the nature of a tribunal error. A

17 See s. 246(1) of the WCA, IBOA, Tab 23, and item 7.5 of the WCAT’s Manual of Rules of Practice and Procedure, IBOA, Tab 27. 18 In relation to the WCAT, see the Administrative Tribunals Act, S.B.C. 2004, c. 45, (“ATA”) s. 58(3)(d), IBOA, Tab 21. 19 Bhardwaj at¶14, per Gleeson C.J.; ¶43, per Gaudron and Gummow JJ.; ¶149, per Hayne J.; and ¶165, per Callinan J., IBOA, Tab 11. 20 Lavender Housing Co-operative Housing Association v. Ford, 2011 BCCA 114 at ¶¶39 – 43, IBOA, Tab 9. 5 technical approach to the operation of functus officio will tend to overwhelm justice and fairness for these litigants. However, Chandler advocated a more relaxed approach to functus officio in the administrative law context precisely because “justice may require [it]”. Likewise, Cromwell J.’s minority reasons in Workers’ Compensation Board v. Figliola underlined that “the Court’s jurisprudence recognizes that, in the administrative law context, common law finality doctrines must be applied flexibly to maintain the necessary balance between finality and fairness.”21

14. The interveners ask: why should the recipient of a decision that is invalid due to procedural unfairness (or for an error that may be described as a kind of procedural unfairness) be able to ask the WCAT to cure the error, while the recipient of a decision tainted by patently unreasonable error must petition the court for relief, and face the cost of judicial review proceedings before the matter can be returned to the tribunal for a new decision? In both cases, the tribunal failed to render a lawful decision. In both cases, justice requires the reopening of the decision to correct the error. In one case justice may come at too high a cost for the affected individual to sustain.

C. The power of a tribunal to reopen to correct patently unreasonable error is consistent with the rationales for the doctrine of functus officio

15. Courts have traditionally found that the doctrine of functus officio should apply to administrative tribunals for two reasons. First, the doctrine of functus officio protects finality and certainty in decision-making. Just as principles like res judicata and estoppel prevent parties or their privies from relitigating a matter that has been finally decided, functus officio prevents the adjudicator from changing his or her final decision. The principle of finality holds that “a tribunal may not speak on a matter again once it has decided upon it and provided reasons for its decision”.22 A policy in favour of finality wards against the uncertainty that could arise if administrative decision-makers were permitted to change their decisions without restraint. Chandler found that the public interest in finality justifies the application of the doctrine of functus officio in the administrative law context.23

21 2011 SCC 52, [2011] 3 S.C.R. 422 at ¶65, IBOA, Tab 20. In Figliola, the Court was concerned with the doctrines of res judicata, issue estoppel and abuse of process. 22 Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 at ¶49; see also ¶65, IBOA, Tab 13. 23 Chandler at 861 and 862, IBOA, Tab 5. 6

16. The second historical justification for applying functus officio in respect of administrative tribunals is a variant of the principle of legality: absent an explicit statutory power to amend or rescind, an administrative decision-maker exhausts its legal powers by giving a decision on the question committed to it by statute, even if error inheres in the decision-making process. The tribunal cannot correct its error, except by express judicial direction. Canadian Association of Film Distributors and Exporters v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc., 2014 FCA 235 (“SODRAC”), cited by Chiasson J.A. in the decision on appeal, exhibits this reasoning.24

17. Permitting a tribunal like the WCAT to reopen a matter to correct a patently unreasonable error is consistent with the values of finality and certainty, and the principle of legality.

18. A limited power of correction does not undermine finality and certainty. The ability to correct patently unreasonable error does not invite the tribunal to decide a case anew if a party develops a new argument, or to otherwise engage in an iterative process of decision-making.25 It simply supports the tribunal’s ability to issue a lawful final decision, and so discharge its mandate. Reopening for this purpose is consistent with Chandler’s direction that a tribunal may reopen to provide relief otherwise available on appeal, i.e. to remedy reviewable legal error.

19. Affirming that a tribunal has discretion to correct a patently unreasonable error also upholds a basic tenet of the principle of legality, that state action should comply with an underlying grant of statutory authority.26 A tribunal that makes a patently unreasonable error has not discharged the function committed to it by the legislator, any more than has a tribunal that decides in a procedurally unfair manner, or that strays beyond its area of statutory remit. Whatever else a tribunal’s statutory mandate may entail, it must demand that a matter within the tribunal’s powers be decided lawfully because “all exercises of public authority must find their source in law”.27 A

24 Reasons at ¶170, JAR, vol. 1, p. 168; see also Barons v. Luscombe, Ford & Leaman (1835), 111 E.R. 537, IBOA, Tab 1, for an early example of this line of thought; and the dissenting reasons of L’Heureux-Dubé J. in Chandler at 867, for a more recent example. 25 The practice of the WCAT has been to allow a claimant to apply to reopen a tribunal decision on one occasion only. See White Affidavit at Ex. “A”, p. 3, JAR, vol. 5, p. 71. 26 Canada (Attorney General) v. Downtown Sex Workers United Against Violence, 2012 SCC 45, [2012] 2 S.C.R. 524 at ¶31, IBOA, Tab 2. 27 Dunsmuir v. New Brunswick at ¶28, IBOA, Tab 7. 7 patently unreasonable error, one that no amount of curial deference can support,28 is no less unlawful than procedural unfairness or a true jurisdictional error. To adopt the language of Chandler, a tribunal that commits a patently unreasonable error has failed to dispose the matter before it in a manner permitted by its enabling statute.29 Allowing a tribunal to correct such an error is consistent with the principle of legality.

D. If the common law does not currently permit the WCAT and tribunals like it to reopen decisions to correct patently unreasonable errors, it should evolve to do so

20. If the interveners are incorrect that the doctrine of functus officio, in its current form, allows a tribunal to reopen a decision to correct patently unreasonable error, then the common law should change. Tribunals with powers over questions of law should have discretion to reopen matters to correct patently unreasonable errors. The interveners focus on such tribunals because “administrative bodies that do have that power may presumptively go beyond the bounds of their enabling statute and decide issues of common law or statutory interpretation that arise in the course of a case properly before them, subject to judicial review on the appropriate standard”.30

21. This Court may change the common law where it is “necessary to achieve justice and fairness by bringing the law into harmony with social, moral and economic changes, and where the change will not have complete and unforeseeable consequences” but is “more likely to have confined and foreseeable ramifications”.31 Changes to rules of procedure are more easily made than changes to substantive law. The courts are in a good position to know which changes are required to make the court system (or the broader justice system) fairer, and what the consequences of the changes will be.32

28 Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at ¶52, IBOA, Tab 10; Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2014 BCCA 496 at ¶48, IBOA, Tab 15. 29 Chandler at 862, IBOA, Tab 5. 30 Martin at ¶45, IBOA, Tab 12. 31 Porto Seguro Companhia de Seguros Gerais v. Belcan S.A., [1997] 3 S.C.R. 1278 at 1292, IBOA, Tab 18. 32 Ibid. at 1292 – 1293. 8

E. Functus officio should be changed to enhance access to justice

22. The most compelling reason to permit tribunals to reopen decisions to correct patently unreasonable errors is to promote access to justice for individuals of modest means. As Binnie J. said in Canada (Attorney General) v. Telezone Inc. (albeit in a somewhat different context), “People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity”.33 Judicial review proceedings are not ideally suited to this mandate. They can be expensive, and the legal issues argued on review can be complex.

23. Recipients of patently unreasonable tribunal decisions need, and should have, an accessible remedy. The reopening process that the WCAT used for over a decade was effective in this regard. The WCAT permitted a claimant to file a standard form stating why the decision at issue was patently unreasonable. There was no need for the claimant to file an affidavit in support. There was no need for the claimant to explain, in detail, the statutory provisions and policies at issue, given the tribunal’s familiarity with the WCA. If the grounds for the application were not adequately explained, tribunal counsel would write to the worker or dependent to ask for clarification. There was no filing fee to apply for reconsideration.34 This process helped to realise substantive justice in more than 289 cases, including 113 where the tribunal cured its own patently unreasonable error.35 The common law should affirm the discretion of the WCAT, and tribunals like it, to continue to do justice for benefits claimants, without the necessity of court intervention.

F. Allowing tribunals discretion to reopen matters to correct patently unreasonable errors is consistent with contemporary administrative law remedies

24. The usual order on judicial review for an error going to jurisdiction is to remit the matter back to the tribunal for a new decision.36 In British Columbia, the order may be made pursuant to s. 5 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, which permits the Court to

33 2010 SCC 62, [2010] 3 S.C.R. 585 at ¶18, IBOA, Tab 5. 34 Affidavit of Jim Sinclair, made June 24, 2014 at ¶¶ 2 and 11, JAR, vol. 5, pp. 139 and 142; Bharmal Affidavit at ¶ 9, JAR, vol. 5, p. 105; White Affidavit at ¶¶ 7 – 8, JAR, vol. 5, pp. 64 - 65. 35 White Affidavit at ¶11, JAR, vol. 5, p. 65. 36 Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada loose-leaf consulted on October 23, 2015 (Toronto: Carswell, 2014) at 5:2210, IBOA, Tab 24. 9

“direct the tribunal . . . to reconsider and determine, either generally or in respect of a specified matter, the whole or any part of a matter to which the application relates”. Remittance orders are common because “even where a court has the express power to substitute its decision for that of an agency … the court’s relative lack of expertise may warrant an order remitting the matter to the agency for redetermination.”37 If the way that the doctrine of functus officio operates with respect to administrative tribunals is changed, tribunals will continue to reopen matters exactly as they do now pursuant to court orders, except that they will not require specific judicial direction to act. This change is modest and will have confined and foreseeable ramifications in the law.

25. The majority of the Court of Appeal was particularly concerned to protect the proper roles of administrative tribunals and the courts in our system of justice. Thus, Chiasson J.A. commented that “The Legislature did not give the WCAT the authority to undertake a judicial review of its own decisions,” and that whether “a tribunal may be wrong substantively is for the courts to determine on judicial review, not for the tribunal itself”.38

26. The superior courts’ mandate to supervise the legality of government action will not be altered by affirming that the doctrine of functus officio will permit a tribunal to cure its own patently unreasonable error. A person affected by a tribunal’s final decision on reopening will not lose her standing to apply for review because the tribunal has reopened the matter. Similarly, confirming that a tribunal may reopen a decision to correct patently unreasonable error cannot affect the courts’ constitutional mandate to review the decisions of administrative tribunals. The imperative of judicial review will remain unimpeded.

G. Allowing the WCAT to reopen a decision to correct a patently unreasonable error is consistent with the scheme and intent of the WCA

27. Permitting the WCAT to reopen appeals to correct patently unreasonable errors respects the legislature’s intention that workers’ compensation claims will be resolved through the specialised tribunals constituted to hear them, without resort to proceedings in court. The administrative scheme for claims adjudication is a fundamental aspect of workers’ compensation in Canada.39

37 Ibid.; see also Martin, IBOA, Tab 12. 38 Reasons at ¶¶138 and 161, JAR, vol. 1, pp. 161 and 167. 39 Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890 at ¶27, IBOA, Tab 14. 10

Newbury J.A. was correct to observe that doing away with reconsideration by the WCAT, and channelling more people into the court system to pursue judicial review, is “contrary to the purpose of the … [WCA], and to the principles of administrative law generally”.40

H. Affirming a power for tribunals to reopen patently unreasonable decisions upholds the rule of law in administrative justice

28. In concurring reasons in Toronto (City) v. C.U.P.E., Local 79, LeBel and Deschamps JJ. recognised that administrative decision-makers play a “vital and increasing role” in the justice system and “have an important role to play in upholding and applying the rule of law”.41 Allowing tribunals to correct their own patently unreasonable errors supports the promotion of the rule of law in administrative decision-making. This, in turn, will enhance access to justice for the individuals affected by tribunal decisions. There is no compelling reason why the common law procedural principle of functus officio should pose a barrier to these objectives.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 23rd day of December, 2015.

______Monique Pongracic-Speier, Ethos Law Group LLP Counsel for the Interveners, Community Legal Assistance Society and British Columbia Federation of Labour

40 Reasons at ¶66, JAR, vol. 1, pp. 134 – 135. 41 2003 SCC 63, [2003] 3 S.C.R. 77 at ¶131, IBOA, Tab 19. An important development has been to allow tribunals not forbidden by statute from doing so to grant constitutional relief; see Martin, at ¶48, IBOA, Tab 12, and R. v. Conroy, 2010 SCC 22, [2010] 1 S.C.R. 765 at ¶¶78 – 79, IBOA, Tab 19. If tribunals with jurisdiction over questions of law can grant constitutional relief, why should they be forbidden from reopening appeals to correct patently unreasonable errors? 11

PART VI – TABLE OF AUTHORITIES

Jurisprudence Paragraph(s)

Barons v. Luscombe, Ford & Leaman (1835), 111 E.R. 537 ...... 16

Canada (Attorney General) v. Downtown Sex Workers United Against Violence, 2012 SCC 45, [2012] 2 S.C.R. 524 ...... 19

Canada (Attorney General) v. Telezone Inc, 2010 SCC 62, [2010] 3 S.C.R. 585 ...... 22

Canadian Association of Film Distributors and Exporters v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc., 2014 FCA 235 ...... 16

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 ...... 8, 9, 10, 15, 16, 19

Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 ...... 8

Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 ...... 5, 19

Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 ...... 1

Lavender Housing Co-operative Housing Association v. Ford, 2011 BCCA 114 ...... 12

Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 ...... 19

Minister for Immigration v. Bhardwaj (2002), 209 C.L.R. 597 (H.C.A.) ...... 9, 12

Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 ...... 2, 20, 24, 28

Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 ...... 15

Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890 ...... 27

Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2014 BCCA 496 ...... 19

Porto Seguro Companhia de Seguros Gerais v. Belcan S.A., [1997] 3 S.C.R. 1278 ...... 21

Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330 ...... 9

R. v. Conroy, 2010 SCC 22, [2010] 1 S.C.R. 765 ...... 28

Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 ...... 28 12

Workers’ Compensation Board v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 ...... 13

Statutes

Administrative Tribunals Act, S.B.C. 2004, c. 45 ...... 11

Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 ...... 24

Workers’ Compensation Act, R.S.B.C. 1996, c. 492...... 2, 4, 11

Other References

Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada loose-leaf consulted on October 23, 2015 (Toronto: Carswell, 2014) ...... 24

Lorne Sossin and Andrea Hill, “Social Rights and Administrative Justice” in Martha Jackman and Bruce Porter, eds., Advancing Social Rights in Canada (Toronto: Irwin Law, 2014) 343 ...... 2

Michael Akehurst, “Revocation of Administrative Decisions” (1982) Public Law 613 ...... 9

WCAT Manual of Rules of Practice and Procedure, item 7.5 ...... 11

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PART VII – STATUTES, REGULATIONS, RULES

Workers’ Compensation Act, R.S.B.C. 1996, c. 492

Appeal tribunal decision-making

250 (1) The appeal tribunal may consider all questions of fact and law arising in an appeal, but is not bound by legal precedent

(2) The appeal tribunal must make its decision based on the merits and justice of the case, but in so doing the appeal tribunal must apply a policy of the board of directors that is applicable in that case.

(3) Despite subsection (1), the appeal tribunal is bound by a prior decision of a panel appointed under section 238 (6) unless

(a) the specific circumstances of the matter under appeal are clearly distinguishable from the circumstances addressed in the prior decision,

(b) subsequent to the prior decision, a policy of the board of directors that the panel relied upon in the prior decision was repealed, replaced or revised, or

(c) the prior decision has been overruled under subsection (3.1) of this section.

(3.1) Despite subsection (3), a panel appointed under section 238 (6) may overrule a prior decision of another panel appointed under that section.

(4) If the appeal tribunal is hearing an appeal respecting the compensation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the appeal tribunal must resolve that issue in a manner that favours the worker.

Amendment to final decision

253.1 (1) If a party applies or on the appeal tribunal's own initiative, the appeal tribunal may amend a final decision to correct any of the following:

(a) a clerical or typographical error;

(b) an accidental or inadvertent error, omission or other similar mistake;

(c) an arithmetical error made in a computation.

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(2) Unless the appeal tribunal determines otherwise, an amendment under subsection (1) must not be made more than 90 days after all parties have been served with the final decision.

(3) Within 90 days after being served with the final decision, a party may apply to the appeal tribunal for clarification of the final decision and the appeal tribunal may amend the final decision only if the appeal tribunal considers that the amendment will clarify the final decision.

(4) The appeal tribunal may not amend a final decision other than in those circumstances described in subsections (1) to (3).

(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.