ON APPEAL from the BRITISH COLUMBIA COURT of APPEAL) BETWEEN: WORKERS' COMPENSATION APPEAL TRIBUNAL Appellant (Respondent) - and —

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 RESPONDENT, WORKERS' COMPENSATION APPEAL TRIBUNAL (pursuant to Rule 44 of the Rules of the Supreme Court of Canada)

Workers' Compensation Appeal Tribunal Borden Ladner Gervais LLP 150-4600 Jacombs Road Barristers & Solicitors Richmond, B.C. V6V 3B1 World Exchange Plaza 100 Queen Street, suite 1300 Timothy J. Martiniuk Ottawa, ON KIP 1J9 Telephone: (604) 664-7800 Fax: (604) 713-0443 Tel: (613) 237-5160 [email protected] Fax: (613) 230-8842 E-mail: [email protected]

Counsel for the Appellant/Respondent Ottawa Agent for the Appellant/Respondent Workers' Compensation Appeal Tribunal Workers' Compensation Appeal Tribunal

Harris & Company Gowling Lafleur Henderson LLP Barristers & Solicitors Barristers & Solicitors 1400 - 550 Burrard St 2600 — 160 Elgin Street Vancouver, B.C. V6C 2B5 Ottawa, ON KIP 1C3

Nazeer T. Mitha Jeffrey W. Beedell Tel: (604) 684-6633 Tel: (613)233-1781 Fax: (604) 684-6632 Fax: (613563-9869 nmithagharrisco.com jeff.beede110),gowlings.com

Counsel for the Respondent Fraser Health Ottawa Agent for Counsel for the Respondent Authority Fraser Health Authority

Health Sciences Association of Gowling Lafleur Henderson LLP British Columbia Barristers & Solicitors 180 East Columbia Street 2600 — 160 Elgin Street New Westminster, BC V3L 0G7 Ottawa, ON KlP 1C3

Randall Noonan and Matthew S. Estabrooks Tonie Beharrell Tel: (613)233-1781 Tel: (604)617-0994 Fax: (613563-9869 Fax: (604)515-8889 [email protected] rnoonan(i/,hsabc.org [email protected]

Counsel for the Respondents / Appellants Ottawa Agent for Counsel for the Respondents Katrina Hammer et al. / Appellants Katrina Hammer et al.

Attorney General of Canada Attorney General of Canada 3400 - 130 King Street West 50 O'Connor Street The Exchange Tower, Box 36 Suite 500, Room 557 Toronto, ON M5X 1K6 Ottawa, ON KlA OH8

Christine Mohr and Christopher M. Rupar Alexander Pless Tel: (416) 973-4111 TEL: (613) 670-6290 FAX: (416) 952-4518 FAX: (613) 954-1920 E-mail: [email protected] E-mail: christo a

Counsel for the Intervener, Attorney General Agent for the Intervener, Attorney General of of Canada Canada 3

IAVGO Community Legal Clinic Community Legal Services-Ottawa Carleton 489 College Street 1 Nicholas Street, Suite 422 Suite 203 Ottawa, ON KIN 7B7 Toronto, ON M6C 1 A5

Ivana Petricone Maryth Yachnin Joel Schwartz Michael Bossin

TEL: (416) 924-6477 TEL: (613) 241-7008 Ext: 224 FAX: (416) 924-2472 FAX: (613) 241-8680 E-mail: [email protected] E-mail: [email protected]

Counsel for the Intervener, Ontario Network of Agent for the Intervener, Ontario Network of Injured Workers' Groups and Industrial Injured Workers' Groups and Industrial Accident Victims' Group of Ontario Accident Victims' Group of Ontario

Ethos Law Group LLP Juristes Power 1124 - 470 Granville Street 130, rue Albert Vancouver, British Columbia Bureau 1103 V6C 1V5 Ottawa, ON KIP 5G4

Monique Pongracic-Speier Justin Dubois

Tel: (604) 569-3022 TEL: (613) 702-5560 FAX: (866) 591-0597 FAX: (613) 702-5560 E-mail: [email protected] E-mail: jdubois etjuristespower.ca

Counsel for the Intervener, Community Legal Agent for the Intervener, Community Legal Assistance Society and British Columbia Assistance Society and British Columbia Federation of Labour Federation of Labour

Attorney General of Ontario Burke-Robertson 720 Bay Street 441 MacLaren Street 8th Floor Suite 200 Toronto, Ontario Ottawa, Ontario M5G 2K1 K2P 2H3

Sara Blake Robert E. Houston, Q.C. Sandra Nishikawa TEL: (613) 236-9665 TEL: (416) 326-4155 FAX: (613) 235-4430 FAX: (416) 326-4181 E-mail: rhoustonAburkerobertson.com E-mail: [email protected]

Counsel for the Intervener, Attorney General Agent for the Intervener, Attorney General for for Ontario Ontario TABLE OF CONTENTS

PART I — OVERVIEW AND POSITION WITH RESPECT TO APPELLANTS' STATEMENT OF FACTS 1 A. Overview of the Respondent's Position 1 B. Position with Respect to Appellants' Statement of Facts 1 PART II — QUESTIONS IN ISSUE 1 PART III — STATEMENT OF ARGUMENT 2 A. Patent Unreasonableness is the Applicable Standard of Review 2 B. Patently Unreasonable Findings of Fact 2 PART IV — SUBMISSIONS ON COSTS 12 PART V — ORDER SOUGHT 13 PART VI — TABLE OF AUTHORITIES 14 PART VII — STATUTES AND REGULATIONS 15 A. Administrative Tribunals Act, S.B.C. 2004, c. 45 15 PART I - OVERVIEW AND POSITION WITH RESPECT TO APPELLANTS' STATEMENT OF FACTS

A. Overview of the Respondent's Position

1. The Workers' Compensation Appeal Tribunal (WCAT) takes no position on the merits of the appeal. That is to say, the WCAT takes no position on whether the majority of the Court of Appeal of British Columbia erred in concluding that the WCAT decisions to dismiss the appellants' workers' compensation appeals were patently unreasonable.

2. The WCAT supports the appellants' position on the standard of review that applies to the WCAT decisions.'

3. The WCAT submits that WCAT decisions are subject to the standard of review of patent unreasonableness as set out in section 58(2)(a) of the Administrative Tribunals Act (ATA)2, and that when findings of fact are at issue in a judicial review proceeding the test that the reviewing court must apply is whether there is any evidence that supports the tribunal's finding. As long as there is some evidence that can logically support the finding, a court may not consider whether the evidence is sufficient. Even if there is overwhelming evidence that supports the opposite conclusion, a finding will be patently unreasonable only if there is no evidence to support it.

B. Position with Respect to Appellants' Statement of Facts

4. The WCAT agrees with the appellants' statement of facts.

PART II - QUESTIONS IN ISSUE

5. The WCAT agrees with the appellants that on the patent unreasonableness standard of review the appropriate approach to review of an administrative tribunal's findings of fact is to determine whether there was any evidence capable of supporting the findings and not to go further and determine whether such evidence was sufficient.

I In this appeal references to the WCAT decisions is a reference to the original WCAT decisions, not to the WCAT reconsideration decisions. The WCAT's position on the applicable standard of review in respect of the reconsiderations is set out in WCAT's appellant's factum.

2 S.B.C. 2004, c. 45 2

6. In light of the active involvement of the appellants in this proceeding, the WCAT takes no position on whether the B.C. Court of Appeal did in this case go further or whether there was in this case any evidence that supported the WCAT decisions.

PART III - STATEMENT OF ARGUMENT

A. Patent Unreasonableness is the Applicable Standard of Review

7. As this is an appeal of a judicial review proceeding, this Court must identify the appropriate standard of review. For the WCAT the ATA directs that for findings of fact over which the WCAT has exclusive jurisdiction, the standard of review is patent unreasonableness.

B. Patently Unreasonable Findings of Fact

8. The meaning of patent unreasonableness is not defined in the ATA for a tribunal's findings of fact or law. One must look to the common law to determine its meaning.

9. In Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, Binnie J. said, in obiter (emphasis in original):

Generally speaking, most if not all judicial review statutes are drafted against the background of the common law of judicial review. Even the more comprehensive among them, such as the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45, can only sensibly be interpreted in the common law context because, for example, it provides in s. 58(2)(a) that "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". The expression "patently unreasonable" did not spring unassisted from the mind of the legislator. It was obviously intended to be understood in the context of the common law jurisprudence.3

10. The B.C. Court of Appeal in Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2014 BCCA 4964 determined that the meaning of patent unreasonableness in the ATA currently has the meaning it had prior to the enactment of the ATA, which, for non-discretionary decisions, is the meaning ascribed by this Court in Law

3 Appellants' Book of Authorities (ABOA), Tab 3, para. 19. 4 Book of Authorities of the Appellant, Workers' Compensation Appeal Tribunal (BOAAWCAT), Tab 29, paras. 37-48. 3

Society of New Brunswick v. Ryan5. As set out by the Court in Pacific Newspaper Group, in Ryan a patently unreasonable decision was defined to be one that is "clearly irrational" or "evidently not in accordance with reason". This Court recently denied leave to appeal the Pacific Newspaper Group case.6

11. Whether a decision is clearly irrational is given a more precise form in matters involving findings of fact. The leading decision of this Court prior to the enactment of the ATA is Toronto (City) Board of Education v. 0.S.S.T.E, District 15, [1997] 1 S.C.R. 4877 where Cory J. for the majority said (emphasis added):

What Constitutes a Patently Unreasonable Decision?

41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law.

44 It has been held that a finding based on "no evidence" is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245, at p. 277:

. . . a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review.

45 When a court is reviewing a tribunal's findings of fact or the inferences made on the basis of the evidence, it can only intervene "where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact": Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the

5 2003 SCC 20

6 [2015] S.C.C.A. No. 60

7 Book of Authorities of the Respondent, Workers' Compensation Appeal Tribunal (BOARWCAT), Tab 4 4

Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, at p. 669 per McLachlin J.

46 All these tests are strict ....

12. A December 2001 paper entitled "Standard of Review on Judicial Review or Appeal"8 prepared by Frank A.V. Falzon recognized that this was the test prior to the enactment of the ATA. This paper was prepared for the Administrative Justice Project of the Ministry of Attorney General, which led to the enactment of the ATA:

On judicial review, the law is clear relief will not be granted based on an error of fact unless the tribunal has arrived at a key finding of fact without any evidence. The leading case is Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997] 1 S.C.R. 487 at paras 42-43: [quote is as above in paras. 44-46] ...

13. The test was expressed differently in an August 2003 document entitled "Model Statutory Powers Provisions for Administrative Tribunals"9 prepared by the Administrative Justice Office, where the authors stated:

Applying standard of review jurisprudence, a finding of fact is unreasonable and constitutes jurisdictional error if either there is no evidence before the tribunal to justify its finding, or, in light of that evidence it appears to be wholly unreasonable. In such a case, the error of fact has been described as an error of law which deprives the tribunal of jurisdiction. Regardless of whether an administrative tribunal is insulated by a privative clause, a reviewing court is generally extremely deferential to tribunal fact-finding.

14. The paper also suggested language for statutory standards of review. For tribunals with a privative clause the option provided was (emphasis added):

Option 1: Standard of review on judicial review (with privative clause)

59(1) In judicial review proceedings, the standard of review to be applied by the court to a decision of the tribunal is as follows:

(a) for intra-jurisdictional statutory interpretation questions, the standard of review is patent unreasonableness;

8 BOARWCAT, Tab 5, p.34

9 BOARWCAT, Tab 6, p. 93, 130 5

(b) for questions of law, other than those described in paragraph (a), and questions of jurisdiction the standard of review is correctness;

(d) for questions involving the exercise of the tribunal's discretion, the tribunal's decision can only be set aside if it is unreasonable.

(2) For purposes of subsection (1)(a), a decision is patently unreasonable if it is clearly irrational.

(3) For purposes of subsection (1)(b), questions of jurisdiction include natural justice questions.

.(4) For purposes of subsection (1)(c), a finding of fact is patently unreasonable if there is no evidence to support it or if, in light of the whole of the evidence, the finding is clearly irrational.

(5) For purposes of subsection (1)(d), a discretionary decision is unreasonable if it is made arbitrarily or in bad faith, if the discretion is exercised for an improper purpose, if the tribunal relied on irrelevant considerations or if the tribunal failed to take into account relevant considerations.

15. For tribunals without a privative clause the following was set out as an option:

Option 2: Standard of review on judicial review (with no privative clause)

60(1) In judicial review proceedings, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting findings of fact.

(2) A finding of fact by the tribunal should only be set aside if there is no evidence to support it or if, in light of the whole of the evidence, the finding is clearly irrational.

16. Ultimately, the legislature chose not to provide a definition of "patently unreasonable" for findings of fact or law made by tribunals with a privative clause. It did for tribunals without a privative clause but replaced "clearly irrational" with "otherwise unreasonable".1°

1° Section 59 of the ATA, Part VII (B) of this factum 6

17. During the second reading of the Administrative Tribunals Act (Bill 56)11, the Attorney General appeared to be equating a patently unreasonable decision to one that is "extremely unreasonable" or that contains an "egregious mistake" (emphasis added):

In some situations the courts are willing to give significant deference to tribunal decisions, particularly if a tribunal has — relative to the courts — a substantial amount of subject matter expertise. In the case of an expert tribunal, such as the Workers Compensation Appeal Tribunal, a court will not substitute its own view about a decision in a proceeding unless the tribunal's decision is extremely unreasonable.

In other situations the courts show less deference to tribunal decisions, preferring instead to determine whether the tribunal has made the right decision. For tribunals like the Human Rights Tribunal, for example, the courts generally review decisions using a standard of correctness. That really is what the standard of correctness is about. It is asking the question of whether the tribunal got it right, whereas in situations where the courts are willing to give more deference to a tribunal where the test may be a higher test, it's possible for the tribunal to make a mistake. So long as the mistake is not egregious, then the courts will not intervene.

18. We are then left with the common law definition for patently unreasonable findings of fact, which provides that only where there is no evidence to support a finding will the finding be patently unreasonable. The WCAT submits that when this court confirmed in Toronto (City) Board of Education that a finding based on no evidence is patently unreasonable but then summarized that test as permitting court intervention "where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact", "the evidence" referred to was a reference to the evidence that had been identified as the "some evidence" that supported the tribunal's finding.

19. This makes sense given the Court's admonition in Toronto (City) Board of Education that it is wholly inappropriate for a reviewing court to consider the sufficiency of the evidence. Even where the evidence contrary to the tribunal's finding is overwhelming, the decision will not for that reason be patently unreasonable (emphasis added):

78 The evidence that Mr. Bhadauria's misconduct was not temporary appears to be overwhelming. Yet that is not sufficient in itself to base a conclusion that the decision of the majority was patently unreasonable. What does lead to that conclusion is that I can find no other evidence reasonably capable of supporting

British Columbia, Legislative Assembly Official Report of Debates (Hansard), 37th Parl, 5th Sess, Vol. 25, No.15 (May 18, 2004), p. 11193, BOAAWCAT, Tab 42 7

the conclusion that the misconduct was a momentary aberration. There was certainly no onus on the employee to demonstrate that his misconduct was temporary. The reasons of the majority clearly indicate, however, that they accepted the employer's evidence that just cause had been established and that the employer had discharged its onus in that regard. Quite simply, the evidence that the arbitrators stated they were relying upon to support their findings pointed to the exact opposite conclusion. The absence of such evidence renders the decision patently unreasonable, and there was simply no basis for the "leap of faith" that he could return to the classroom.

20. This Court in Toronto (City) Board of Education adopted the "where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact" test from the majority decision of this Court in Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 64412. In that case, McLachlin J. (as she then was) for the majority of this Court, determined, as this Court did in Toronto (City) Board of Education, that only where there is no evidence to support the decision is it patently unreasonable (emphasis added):

As stated at the outset, the Court in reviewing labour decisions is not concerned with whether or not the decision is "correct" but rather is concerned with whether or not the decision is "patently unreasonable". If there is any evidence capable of supporting a finding of successorship, the Court [page688] will defer to the Board's finding even though it may not have reached the same conclusion. However, absent such evidence, the decision must fall.

I conclude that, while the evidence demonstrates a certain level of cooperation between the two companies, there is no evidence of any disposition by Lester to Planet, either of work, assets, or expertise. The evidence is incapable of supporting the Board's conclusion that there had been a disposition under s. 89 of the Act.

The absence of evidence establishing a transfer or disposition under s. 89 of that Act renders the Board's decision patently unreasonable. The Board was able to arrive at its conclusion only by construing the Act in an unprecedented and unjustified manner.

12 BOARWCAT, Tab 3, p. 687, 692-693 8

21. The "no evidence" test, as it applied to certiorari applications in Canada, was described at least as early as the Judicial Committee of the Privy Council's (JCPC) decision in Canada v. Nat Bell Liquors, Ltd 13 Although the case is primarily known for its finding that serious errors of fact are not jurisdictional (a position later overruled by this Court) and its narrow definition of the record for purposes of determining whether an "error of law on the face of the record" had been made, the JCPC emphasized that to the extent that findings of fact could be reviewed as errors of law on the face of the record they would be reviewable on a very deferential standard:

21 It appears to their Lordships that, whether consciously or not, these learned judges were in fact rehearing the whole case by way of appeal on the evidence contained in the depositions, a thing which neither under the Liquor Act nor under the general law of certiorari was it competent to them to do. As, however, the majority in the Supreme Court proceeded on a view of certiorari, which purported to justify this mode of dealing with the evidence, their Lordships will consider the case in that light without disposing of it as a case of entertaining an appeal, where no appeal lay.

22 The reasons, expressed or implied, which in the view of the learned judges warranted the Court in quashing this conviction appear to have been the following: (1.) Without Bolsing there was no evidence of the commission of the offence by the accused company, and his evidence was no evidence, since he was an accessory before the fact and was uncorroborated; (2.) it was not evidence on which a jury could safely convict, and ought therefore to be treated as no evidence at all; (3.) want of evidence or of sufficient evidence makes the conviction one pronounced without jurisdiction; ....

23 Their Lordships think that of these contentions the first and second may be shortly disposed of They all imply that there was evidence, but not much; they all ask whether that little evidence was enough; they are all applied to a body of men who are not the absolute judges of fact, but only judges whose decision may, though rarely, be disturbed. On certiorari, so far as the presence or absence of evidence becomes material, the question can at most be whether any evidence at all was given on the essential point referred to. Its weight is entirely for the inferior Court: "If indeed there had been any evidence whatever, however slight, to establish this point," said Lord Kenyon in Rex v. Smith, (1800), 8 T.R. 588, 590, "and the magistrate who convicted the defendant had drawn his conclusion from that evidence, we would not have examined the propriety of his conclusion; for the magistrate is the sole judge of the weight of the evidence. And for this reason I think there is no foundation for the first objection There was some evidence from which he might draw the conclusion."

13 [1922] J.C.J. No. 1, [1922] 2 A.C. 128, [1922] 2 W.W.R. 30, BOARWCAT, Tab 1 9

30 The proposition adopted may be stated thus: in exercising its inherent jurisdiction to supervise the proceedings of an inferior Court, the Superior Court must inquire whether there was any evidence on which the tribunal below could have decided as it did decide, and this involves examining the evidence given to see if it was sufficient in this sense to sustain the conviction. If, on some part of the case, which was material to the charge and had to be legitimately established before the accused person could be convicted, no evidence was forthcoming at all, this would be error of law, which being duly brought to the notice of the superior Court would oblige it to quash the conviction. For this reliance was placed on Rex v. Smith, 8 T.R. 588; Rex v. Crisp, (1806), 7 East, 389; and Rex v. Chandler, (1811) 14 East, 267.; Ex parte Vaughan, (1866), L.R. 2 Q.B. 114; and Lovesy v. Stallard, (1874), 30 L.T. 792.

31 It is evident that this exact point must be one of rare occurrence. It assumes complete jurisdiction, complete absence of any testimony on a definite and essential point, and complete presentation to the superior Court of this omission in the Court below. Only if the whole evidence given can be got before the superior Court can this difficulty be raised. Only when it appears that no witness whatever has said a thing that must be said by some one will it fall to be discussed. ...

22. The proper role of a reviewing court is to consider whether there is some evidence in the record that is logically capable of supporting the tribunal's finding. This does require the court to engage in a reasonableness analysis of the "some evidence". A respondent cannot simply label something as "some evidence" as if it were a magical incantation protecting the tribunal's finding from review. The reviewing court must ensure that the proffered "some evidence" can support the finding in the sense that it is logically capable of doing so. If it cannot, then the proffered "some evidence" amounts to "no evidence" and the finding is patently unreasonable. If the finding is a key finding or constitutes the decision, the decision is patently unreasonable.

23. The WCAT submits that if the court determines that there is some evidence that can logically support a factual finding, the test for patent unreasonableness does not require the court to then consider whether all of the evidence as a whole can reasonably support the finding. There is only one test: whether there is any evidence that can logically support the finding. The hallmark of a patently unreasonable decision is one that has no evidence to support it. Determining whether the finding is reasonable in light of the evidence as a whole invites an impermissible weighing of the evidence. 10

24. In McInnes v. Simon Fraser University,14 McLachlin J., as she then was, made clear that the review test for findings of fact does not permit a further review for sufficiency of evidence once some evidence has been identified. McLachlin J. also clarified that references to reviewing the reasonableness of the outcome in light of the evidence was nothing more than a reference to the review of the "some evidence" (emphasis added):

"NO EVIDENCE" AS A GROUND OF JUDICIAL REVIEW:

7 This Court may not set aside a decision of a statutory tribunal merely because it would have reached another conclusion: Yarrows Ltd. v. Canadian National S.S. Co. [1915] 2 D.L.R. 204 (B.C.S.C.). It may do so only if one of the recognized grounds for setting aside such orders is established. In this case, as stated at the outset, the only ground relied upon is that there was no evidence, or alternatively insufficient evidence, to support the Senate committee's decision.

8 It is clear that where there is no evidence to support the award under review, it will be held that the tribunal exceeded its jurisdiction with the result that the award will be set aside: Ramage v. Vancouver (1956) 20 W.W.R. 153 (B.C.C.A.); Vancouver v. Brandram-Henderson of B.C. Ltd. [1960] S.C.R. 539; Re Knight Lumber Co. (1959) 22 D.L.R. (2d) 92 (B.C.S.C.). Thus if the petitioner can establish that the committee had no evidence before it upon which it could base its conclusion, she is entitled to have the award set aside.

9 However, counsel for the petitioner asserted the further and alternative proposition that the award should be set aside notwithstanding some evidence on the question if that evidence was such that it could not reasonably support the committee's conclusion. He referred in particular to the written notes and reports of the associates who supervised Mrs. McInnes, which he sought to impeach on the ground, first, that portions of them had been rejected by the committee, and, secondly, that some of them were made after Mrs. McInnes' withdrawal. It was submitted that this evidence in view of its deficiencies could not reasonably support the committee's conclusion, which should consequently be set aside.

10 In support of this proposition, counsel for the petitioner quoted the following statement by Lord Denning M. R., as he then was, in In re Stalybridge [1965] 1 W.L.R. 1320 at 1326:

"The court can only interfere on the ground that the Minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence

14 [1982] B.C.J. No. 1779, 140 D.L.R. (3d) 694, BOARWCAT, Tab 2 11

he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law."

Counsel for the petitioner relied on the portion of the passage which I have underlined as establishing the duty of this Court to consider whether such evidence as may have been tendered on the issue could reasonably support the committee's conclusion.

11 The requirements which must be met if a Court is to set aside the decision of an inferior tribunal for "no evidence" are clearly established. If the decision is to be upheld, there must be some evidence logically capable of supporting the conclusion to which the tribunal has come. Such evidence is sometimes referred to as evidence which "reasonably" supports the conclusion, leading to statements such as that found In re Stalybridge, supra, to the effect that the conclusion must be one to which the tribunal could reasonably have come on the evidence. Such language does not in my view authorize the Court to embark on the exercise of weighing and evaluating evidence which was properly received by the committee and which possesses some probative value. The court of review remains confined to the initial question of whether there is some evidence capable of supporting the committee's conclusion.

25. The B.C. Court of Appeal in Speckling v. British Columbia (Workers' Compensation Board),15 described the patently unreasonable test this way:

37 As the chambers judge noted, 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 considered by the Appeal Division and substitute different findings of fact or inferences drawn from those 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. That is not the case here.

26. WCAT submits that this accurately describes the applicable test. However, WCAT submits that the disjunct "the decision is 'openly, clearly, evidently unreasonable'"I6 is not an invitation to a reviewing court to consider for a second time whether a particular finding of fact is

15 2005 BCCA 80, ABOA, Tab 14

16 In his reasons for judgment, Goepel J.A., at paras. 205, 207 and 212 misquotes this phrase as "openly, clearly, evidentially unreasonable" (emphasis added) 12

patently unreasonable (the first being a review for "no evidence") by considering whether the finding is reasonably supported by all of evidence. The "clearly irrational" question in relation to the finding of fact has been exhausted by the application of the "no evidence" test.

27. Rather, that expression ensures that it remains open to a court to consider any other grounds upon which the decision (as opposed to a finding of fact) is clearly irrational. There may also be rare circumstances where there are serious concerns relating to a finding of fact that cannot be adequately analyzed within the "no evidence" test — such as a tribunal rejecting key contrary evidence due to an obvious and material misapprehension of that evidence. In these limited circumstances a reviewing court may find the decision to be clearly irrational even if the finding of fact nonetheless has some evidence in support.

28. The "no evidence" test provides practical guidance to reviewing courts. It is appropriately deferential by limiting the risk that a court will consider for itself whether it would have come to the same conclusion on the evidence before the tribunal. It does this by terminating the inquiry once some evidence has been identified that is logically capable of supporting the conclusion. Apart from recognizing certain exceptions, narrowly and precisely defined - such as the misapprehension of the contrary evidence - there is no principled method by which a court can consider all of the evidence to determine whether it can reasonably support a conclusion but avoid weighing the evidence. The thought processes are the same. And that which cannot be precisely expressed cannot be consistently applied.

PART IV — SUBMISSIONS ON COSTS

29. The WCAT does not seek costs and submits that no costs should be awarded against it in this appeal. 13

PART V — ORDER SOUGHT

30. The WCAT takes no position on the order sought.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 4th DAY OF DECEMBER, 2015.

Timothy J. M rtiniuk Counsel for the ppellan Worker tion Appeal Tribunal 14

PART VI — TABLE OF AUTHORITIES Case Law Paragraph(s)

Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 9 Canada v. Nat Bell Liquors, Ltd. [1922] J.C.J. No. 1, [1922] 2 A.C. 128, [1922] 21 2 W.W.R. 30 McInnes v. Simon Fraser University, [1982] B.C.J. No. 1779, 140 D.L.R. (3d) 24 694 Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and 20 Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644 Pacific Newspaper Group Inc. v. Communications Energy and Paperworkers 10 Union of Canada, Local 2000, 2014 BCCA 496 Speckling v. British Columbia (Workers' Compensation Board), 2005 BCCA 80 25 Toronto (City) Board of Education v. 0.S.S.T.F., District 15, [1997] 1 S.C.R. 11, 18, 19, 20 487 Hansard

British Columbia, Legislative Assembly Official Report of Debates (Hansard), 17 37th Parl, 5rd Sess, Vol. 25, No.15 (May 18, 2004) Government Reports

Frank V. Falzon, "Standard of Review on Judicial Review or Appeal", 12 December 2011

Ministry of Attorney General, Administrative Justice Office, "Model Statutory 13, 14, 15 Powers Provisions for Administrative Tribunals", August 2003 15

PART VII — STATUTES AND REGULATIONS

Statutes

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

Section 58

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. 16

Section 59

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.