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

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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 2 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.
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