COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Colwill v. Workers’ Compensation Board,,
	2019 BCCA 261

Date: 20190703

Docket: CA46117

Between:

David Colwill

Respondent

(Petitioner)

And

Workers’ Compensation Board

Appellant

(Respondent)

And

Workers’ Compensation Appeal Tribunal

Respondent

(Respondent)

Before:

The Honourable Madam Justice Saunders (In Chambers)

On appeal from:  An order of the Supreme Court of British Columbia, dated
May 27, 2019 (Colwill v. Workers’ Compensation Board, 2019 BCSC 826, Vancouver Docket S1813108).

Oral Reasons for Judgment

Counsel for the Appellant:	B. Parkin J.M. Goosen
Counsel for the Respondent, David Colwill:	K. Love
Counsel for the Respondent, Workers’ Compensation Appeal Tribunal:	J.T. Lovell
Place and Date of Hearing:	Vancouver, British Columbia July 3, 2019
Place and Date of Judgment:	Vancouver, British Columbia July 3, 2019

Summary:

By the order appealed, one policy and a portion of another policy of the Workers Compensation Board addressing the calculation of periodic compensation payments, were set aside. The Workers Compensation Board applied for a stay of the order pending appeal.

The respondent consented to the order on the basis of arrangements made between the parties. Held:  the criteria for a stay of the order are satisfied.

On the issue of irreparable harm, the comments of Justice Harris in British Columbia Teachers’ Federation v. British Columbia 2014 BCCA 75 on a presumption of irreparable harm if the judgment setting aside legislation is not stayed, are adopted.

[1]             SAUNDERS J.A.: The appellant, Workers’ Compensation Board, applies for a stay of execution of the order of the Supreme Court of British Columbia made on judicial review declaring that Policy #37.21 and the last sentence of Policy #39.30 appearing in the Rehabilitation Services and Claims Manual, Volume II, published by the Workers’ Compensation Board, are of no force and effect.

[2]             Ancillary to that order, the Supreme Court of British Columbia ordered that the issue of Mr. Colwill’s compensation for a work-related injury be remitted to the Workers’ Compensation Appeal Tribunal, with directions it re-determine the petitioner’s compensation in a manner that reflects the reasons for judgment of the Supreme Court.

[3]             The underlying issues in the case engage interpretation of ss. 22 and 23 of the Workers’ Compensation Act, R.S.B.C. 1996, c. 492, and their fit with those sections of the two Policies referred to in the Supreme Court order.

[4]             The appellant will contend on this appeal that the Supreme Court of British Columbia addressed the wrong decision in making its order — and that the decision that should have been challenged was the decision of the Workers’ Compensation Appeal Tribunal not to refer the Policies upward for consideration of their compliance with the Act. The appellant will also challenge the substantive conclusion of the judge that the Policies are non‑compliant with the Act or do not reasonably come within its language.

[5]             The order that is sought is an order that must be made in the exercise of the judge’s discretion. The three-part test commonly applied on an application for a stay of proceedings is set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311:

(1)      there is some merit to the appeal in the sense that there is a serious question to be determined;

(2)      the party seeking the stay will suffer irreparable harm if the stay is not granted; and

(3)      the balance of convenience favours a stay.

[6]             Counsel for Mr. Colwill, having come to appropriate arrangements in respect to the individual circumstances of Mr. Colwill, has helpfully agreed that the three criteria appear to be satisfied in this case; Accordingly, Mr. Colwill does not oppose the application today.

[7]             The appellant has filed affidavit material that describes the administrative inconveniences that will be faced in the short-term while the correctness of the Supreme Court’s order is being determined in this court. That includes inconvenience by general disruption to the claims process. This all fits well within the description of irreparable harm provided by Mr. Justice Harris in British Columbia Teachers’ Federation v. British Columbia, 2014 BCCA 75 at para. 32. In that decision, Justice Harris adopted the helpful discussion of Justice Rosenberg in Bedford v. Canada (Attorney General), 2010 ONCA 814, in particular, his paras. 8 and 13:

[8]        …I am bound by a different body of law and by a different test, the test enunciated in RJR-MacDonald, where the context is the prima facie right of the government to a full review of the first-level decision and, as I will explain, the presumption of irreparable harm if the judgment is not stayed pending that review.

...

[13]      Therefore, unlike the application judge, I must determine whether a stay should be granted in a context where (1) there is a prima facie right of the government to a full review of the first-level decision; (2) the government has a presumption of irreparable harm if the judgment is not stayed pending that review; and (3) the responding parties must demonstrate that suspension of the legislation would provide a public benefit to tip the public interest component of the balance of convenience in their favour.

[8]             I am satisfied that the criteria for a stay are satisfied. The appeal is sufficiently arguable to meet the merits test. The issue of irreparable harm is satisfied adopting the spirit of the comments of Harris J.A. In the circumstances, and given the stance taken by Mr. Colwill, clearly the balance of convenience favours the application.

[9]             Accordingly, there will be an order in the terms sought, that is to say, a stay of execution of the order made May 27, 2019 by the Supreme Court of British Columbia in this matter will issue, including a stay of the remittance of Mr. Colwill’s case to the Workers’ Compensation Appeal Tribunal pending the outcome of this appeal.

“The Honourable Madam Justice Saunders”