Johnson v. Workers’ Compensation Board,


2008 BCCA 232

Date: 20080527

Docket: CA035515


Gregory Allan Johnson




Workers’ Compensation Board of British Columbia




Workers’ Compensation Appeal Tribunal




The Honourable Mr. Justice Low

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Frankel

Oral Reasons for Judgment

J.J. Arvay, Q.C.
E. Sigurdson
S. Tucker

Counsel for the Appellant

F.A. Schroeder

Counsel for the Respondent, G.A. Allan

W.A. Pylypchuk

Counsel for the Respondent, Workers’ Compensation Appeal Tribunal

Place and Date of Hearing:

Vancouver, British Columbia


26 May 2008

Place and Date of Judgment:

Vancouver, British Columbia

27 May 2008

[1]                LOW, J.A.: The Workers’ Compensation Board (the “Board”) appeals a judicial review order made in chambers on 26 September 2007 overturning a ruling of the Workers’ Compensation Appeal Tribunal by finding that a Board policy about payment of interest on delayed-approval compensation claims was patently unreasonable.  The chambers decision can be found at 2007 BCSC 1410.

[2]                The respondent, Gregory Allan Johnson, claimed compensation from the Board in 1999 as a consequence of back surgery necessitated by a workplace injury for which he had received compensation in 1985.  A case manager denied the claim in July 1999.  An internal review board allowed Mr. Johnson’s appeal on new medical evidence more than two years later, on 21 September 2001.  On 15 October 2001, the Board passed a monetary interest policy that replaced an existing policy, with respect to payment of interest on delayed claims.  The new policy became effective on 1 November 2001.  Later, the Board paid Mr. Johnson’s claim in the amount of $19,000.  Citing the new policy, a case manager declined to authorize payment of interest during the delay period.  That decision was upheld by an internal review board.

[3]                Mr. Johnson appealed the ruling as to interest to the Workers Compensation Appeal Tribunal.  That body rendered its decision on 8 July 2005.  It upheld the denial of interest to Mr. Johnson.

[4]                On 2 September 2005, Mr. Johnson filed a petition under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.  He sought an order overturning the ruling of the Appeal Tribunal.

[5]                On 31 January 2007, the chambers judge certified the proceeding as a class proceeding under the Class Proceedings Act, R.S.B.C. 1996, c. 50.  That order is the subject of another appeal scheduled to be heard in a few months.  In my opinion, the fact that this proceeding was certified as a class proceeding is irrelevant to the present appeal.

[6]                In her certification decision, the chambers judge identified the common issues as follows: (a) whether the New Interest Policy is patently unreasonable in the face of s. 5 of the [Workers’ Compensation Act] and (b) whether the New Interest Policy is retroactive and therefore ultra vires the statutory authority of [the Board].  On the hearing of the judicial review which led to the order now under appeal, the chambers judge decided that it was unnecessary to decide the second issue because she was of the view that the proper answer to the first issue was in the affirmative.  The basis of her decision was that s. 5 of the Act requires the Board to provide “compensation” to injured workers and compensation must be interpreted to include interest.

[7]                The issue that the Appeal Tribunal was asked to hear and the issue it decided in its reasons was whether the new interest policy that came into effect was retroactive, retrospective or prospective.  The tribunal decided that the new policy was retrospective and, although the decision allowing Mr. Johnson’s claim on an internal appeal pre-dated the date of the new policy, because the issue of interest was determined by the case manager after the new policy came into being Mr. Johnson was not entitled to interest. 

[8]                It is apparent from a reading of the tribunal’s decision that it merely interpreted the new policy on the standard of patent unreasonableness.  It did not consider whether the new policy itself was patently unreasonable.

[9]                Although she noted that the Appeal Tribunal concerned itself only with the retroactivity issue, the chambers judge purported to determine the issue of the reasonableness of the new interest policy as though that issue had been determined by the tribunal.  In para. 55 of her reasons, the judge stated the issue before her as follows:

As a consequence of s. 251(1) and the standard of review, the question for this court is whether the [Appeal Tribunal's] failure to find the New Interest Policy to be so patently unreasonable that it is not capable of being supported by the WCA and its regulations, was itself a patently unreasonable decision.  This is a very high standard for the petitioner to meet.

[10]            After further analysis, the chambers judge concluded at para. 102 as follows:

The class has met the very high standard of review.  The New Interest Policy is not capable of being supported by the WCA and its regulations, and it was patently unreasonable for the [Appeal Tribunal] to conclude otherwise.  The fact that the [Appeal Tribunal] was not provided with argument concerning the effect of s. 5 of the WCA helps to explain how it fell into this error.

[11]            With respect, I think the judge erred by finding error in the decision of the Appeal Tribunal on an issue that the tribunal was not called upon to consider and did not consider.  It is fundamental to judicial review of decisions or orders of tribunals that reviews be confined to those matters that were determined by the tribunal.  What the judge did here was decide in the first instance the issue of the legality of the new interest policy on application of the patently unreasonable test as though that issue ought to have been decided by the tribunal.

[12]            The respondent argued before us that his petition challenged the legality of the new interest policy on the basis of a direct review of the new interest policy itself, without reference to the Appeal Tribunal.  It seems that this argument was not made to the chambers judge.  The argument raises issues such as the scope of the relief sought in the petition and whether the respondent can attack the new interest policy on the basis now proposed without first exhausting his internal remedies under the Workers’ Compensation Act.  Those are matters the chambers judge was not asked to consider.  We should not consider them in the first instance. 

[13]            Because the chambers judge purported to overturn the decision of the Appeal Tribunal on an issue that was not before the tribunal, I would allow the appeal.  However, I would not dismiss the judicial review petition because, as I have noted, the respondent has another argument to make as to whether the court can (or should) consider the legality of the new interest policy directly and without reference to the Appeal Tribunal’s decision.  In addition, the retroactivity issue remains to be determined on the judicial review.

[14]            I would quash the order of the chambers judge and refer the matter back to the trial court in chambers for consideration of the issues in the petition that remain to be determined.

[15]            I would order that the parties bear their own costs of this appeal.

[16]            CHIASSON, J.A.: I agree.

[17]            FRANKEL, J.A.: I agree.

[18]            LOW, J.A.: The appeal is allowed in the terms I have outlined.

“The Honourable Mr. Justice Low”