Baldwin v. Workers' Compensation Appeal Tribunal,


2007 BCSC 942

Date: 20070628
Docket: S071616
Registry: Vancouver

Re An Application for Judicial Review by
Fred Baldwin of Workers’ Compensation Appeal Tribunal
Decision No. WCAT-2007-00065, dated January 9, 2007


Fred Baldwin



Workers’ Compensation Appeal Tribunal,
Attorney General for British Columbia and Steven Liu


Before: The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

Counsel for the Petitioner

Patrick F. Lewis
Martin W. Buhler

Counsel for the Respondent, Workers’ Compensation Appeal Tribunal

V.A. Pylypchuk

Date and Place of Hearing:

June 1, 2007


Vancouver, B.C.

[1]                The petitioner, Mr. Baldwin, seeks judicial review of a decision by the Workers’ Compensation Appeal Tribunal (“WCAT”).  The decision, made by a Vice Chair of WCAT, denied Mr. Baldwin an extension of time to bring an appeal from a decision of the Review Division of the Workers’ Compensation Board (“WCB”).  The requested extension of time is 28 days.

[2]                Mr. Baldwin seeks an order that he be granted the necessary extension of time so that he may proceed to argue the appeal before WCAT on its merits.

[3]                The respondent is WCAT.  The Attorney General was served with the petition material but did not enter an Appearance in the proceeding.

[4]                For the reasons given below, this petition must be dismissed.


[5]                Mr. Baldwin was 49 years old when this petition came before me.  When he was 17 years old, he left high school without graduating to become a tree faller.  He later obtained a grade 12 equivalency, which is his highest level of education.  He has no legal training.

[6]                Mr. Baldwin has two children, aged four and six.  He shares guardianship and custody of the children with his ex-wife.  Mr. Baldwin makes spousal and child support payments.

[7]                In February 2003, Mr. Baldwin was working as a tree faller when he was injured in the course of his work by stepping into a hole and harming his neck.  Mr. Baldwin suffered neck strain and aggravation of a pre-existing neck condition, and became unable to work.  He sought benefits from WCB.

[8]                Mr. Baldwin has sought benefits and the maintenance of those benefits from WCB since his injury.  There is a considerable history between the parties.  I will briefly give a summary of the dates of events that are relevant to this application.

[9]                Generally, decisions of WCB officers may be reviewed by the Review Division of WCB, whose decisions in turn may be appealed to WCAT.

[10]            On December 12, 2003, a ruling by the Review Division awarded benefits to Mr. Baldwin.  These benefits included payments of wage loss benefits of approximately $40,000 per year.

[11]            In the summer of 2004, Mr. Baldwin’s benefits were suspended by WCB.  Mr. Baldwin requested a review of that decision, and in February 2005, the Review Division issued a decision in his favour.  However, on September 9, 2005, WCB terminated Mr. Baldwin’s benefits as of September 15, 2004.

[12]            On April 19, 2006, the Review Decision upheld the WCB decision terminating the benefits.  This is the decision that Mr. Baldwin seeks to appeal to WCAT.

[13]            On April 26, 2006, Mr. Baldwin phoned WCAT with the intention of launching an appeal.  It is not in dispute that Mr. Baldwin was told over the phone that the appeal process had been started as a result of the call, and that he would be sent a notice of appeal form to fill out.  Mr. Baldwin says that because of this phone call, he believed that he had triggered the appeal process and that there was no important deadline to fill out and return forms to WCAT.

[14]            On April 27, 2006, a letter was sent from WCAT outlining the appeal filing process and indicating that a notice of appeal form was enclosed with the letter.  Mr. Baldwin received the letter, but the notice of appeal form was not enclosed.  The letter asked that the form be signed, completed and returned on or before May 29, 2006, and indicated that if the completed notice of appeal was received after that date, it would be considered out of time, and that Mr. Baldwin would have to apply for an extension of time to appeal if he wished to continue with the appeal.  Mr. Baldwin’s evidence is that he read the letter, but does not recall if he took notice of the statements about a May 29, 2006 deadline, believing from the April 26, 2006 conversation that the appeal was already underway, and expecting that, as the notice of appeal form was not sent with the letter, it must be coming separately.

[15]            On June 8 or 9, 2006, Mr. Baldwin received a letter from WCAT, dated June 2, 2006, informing him that his appeal had been closed since he had not submitted the required form on time.  Mr. Baldwin immediately called WCAT on June 9 and told the staff member that he had never been sent forms by WCAT.  A registration clerk with WCAT confirmed that Mr. Baldwin made this telephone call.

[16]            On June 20, 2006, Mr. Baldwin completed and returned a notice of appeal and application for an extension of time.  The forms were received by WCAT on June 26, 2006, and their receipt was acknowledged by letter dated June 30, 2006.

[17]            On January 9, 2007, WCAT released its decision denying Mr. Baldwin an extension of time in which to bring an appeal.  This is the decision for which Mr. Baldwin seeks judicial review.

The Law

[18]            Section 243 of the Workers’ Compensation Act, R.S.B.C. 1996, c. 492 (the “WCA”), sets out the time limit for filing a notice of appeal with WCAT:

243  (1)            A notice of appeal respecting a decision referred to in section 239 [which empowers WCAT to review decisions of the Review Division] must be filed within 30 days after the decision being appealed was made.

(3)    On application, and where the chair is satisfied that

(a)      special circumstances existed which precluded the filing of a notice of appeal within the time period required in subsection (1) or (2), and

(b)      an injustice would otherwise result,

the chair may extend the time to file a notice of appeal even if the time to file has expired.

Petitioner’s Position

[19]            In their very well-organized submissions, counsel for Mr. Baldwin assert that the submissions on behalf of WCAT should be limited to explaining the record before the tribunal and making submissions concerning the jurisdiction of the tribunal.  Counsel state that the tribunal should not make submissions on the merits of the decision under review, and draw my attention to the case of Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244, 43 B.C.L.R. (4th) 65 at paras. 50-54.  I am aware of this issue, and have based my reasons only on those factors which explain the record before the tribunal.


[20]            There are two issues to be decided on this application:  1) what is the proper standard of review of the Vice Chair’s decision; and 2) based on the appropriate standard of review, should the Vice Chair’s decision be disturbed?

[21]            In response to issue one, I have found that the proper standard of review is that of patent unreasonableness.  Based on this standard, I have found that the Vice Chair’s decision should not be disturbed.  I will now provide my reasons for arriving at these two conclusions.

Standard of Review

[22]            Both the parties agree that the proper standard of review is patent unreasonableness.  However, in every case of judicial review, a reviewing court must first determine the appropriate standard of review by engaging in analysis using the pragmatic and functional approach outlined by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; and Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 (“Dr. Q”).

[23]            In Dr. Q, McLachlin C.J.C. again outlined the four steps of the pragmatic and functional approach, at para. 26:

In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors -- the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question -- law, fact, or mixed law and fact. The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law.

[24]            In this province, the enactment of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA“), has clarified still further the process of determining the standard of review.  As Madam Justice Russell commented in McIntyre v. British Columbia (Employment and Assistance Appeals Tribunal), 2005 BCSC 1179 at para. 15:

Determining the applicable standard of review has historically involved a complicated and labyrinthine analysis aimed at discovering the legislative intent of the statute creating the tribunal whose decision is being reviewed. Fortunately, in British Columbia, the Administrative Tribunals Act has removed the need for this analysis as it statutorily prescribes the appropriate standard of review for tribunals protected by privative clauses and those not so protected.

[25]            Section 58 of the ATA provides that:

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,

(c)      is based entirely or predominantly on irrelevant factors, or

(d)      fails to take statutory requirements into account.

[26]            The ATA defines “privative clause” as follows in s. 1:

“privative clause” means provisions in a tribunal’s enabling Act that give the tribunal exclusive and final jurisdiction to inquire into, hear and decide certain matters and questions and provide that a decision of the tribunal in respect of the matters within its jurisdiction is final and binding and not open to review in any court…

[27]            At common law, a full privative clause is “one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded”:  see Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890 at para. 17.

[28]            The WCA, which is the enabling legislation for WCAT, contains a full privative clause:

255 (1) Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court.

(2)      Proceedings by or before the chair or appeal tribunal under this Part must not

(a)    be restrained by injunction, prohibition or other process or proceeding in any court, or

(b)    be removed by certiorari or otherwise into any court.

[29]            In my view, WCAT is an expert tribunal under s. 58(1) of the ATA.

[30]            Turning to the issue of jurisdiction, s. 254 of the WCA affords WCAT exclusive jurisdiction as follows:

254      The appeal tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined under this Part and to make any order permitted to be made, including the following:

(a)        all appeals from review officers’ decisions as permitted under section 239;

(b)        all appeals from Board decisions or orders as permitted under section 240;

(c)        all matters that the appeal tribunal is requested to determine under section 257;

(d)        all other matters for which the Lieutenant Governor in Council by regulation permits an appeal to the appeal tribunal under this Part.

[31]            I am satisfied that WCAT was engaged in matters that fall under its exclusive jurisdiction, namely the determination of the time limits to file an appeal from a WCB decision, according to s. 243 of the WCA.  A decision about whether a notice of appeal has been filed within 30 days of the decision, as required under s. 243(1), is a question of fact, and is therefore entitled to review upon the standard of patent unreasonableness, pursuant to s. 58(2)(a) of the ATA.  Section 243(3) of the WCA gives the chair of WCAT (or a Vice Chair in this instance, by virtue of a delegation under s. 234(4) of the WCA) the discretion to extend the time to file a notice of appeal.  Such discretionary decisions are also entitled to review upon the standard of patent unreasonableness under s. 58(2)(a) of the ATA.

[32]            Based on the existence of the privative clause noted above and the fact that WCAT was engaged in matters that fall under its exclusive jurisdiction, I find that the appropriate standard of review in these circumstances, by operation of statute, is that of patent unreasonableness.  Though not determinative of this decision, I also note that the same standard was applied in very similar circumstances by Rogers J. in Geronazzo v. British Columbia (Workers’ Compensation Board), 2006 BCSC 1086.

Patent Unreasonableness Defined

[33]            Having accepted the standard as that of patent unreasonableness, it remains to define that standard in the context of this application.  Section 58(3) of the ATA states that:

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,

(c)    is based entirely or predominantly on irrelevant factors, or

(d)    fails to take statutory requirements into account. 

[34]            In University of British Columbia v. University of British Columbia Faculty Association, 2006 BCSC 406, 139 C.R.R. (2d) 346, rev’d 2007 BCCA 201 but not on this issue, Powers J. turned, at para. 50, to common law definitions of patent unreasonableness to augment this statutory definition.  In my view, this is a prudent approach.

[35]            The ATA does not define patent unreasonableness outside the context of s. 58(3), which relates to discretionary decisions, and appears to leave the common law definition in place for questions of mixed fact and law.

[36]            In Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80, 46 B.C.L.R. (4th) 77, the Court of Appeal approved of the chambers judge’s description of patently unreasonable as “openly, clearly, evidently unreasonable”.  The chambers judge in turn drew this definition from Canada (Director of Investigation and Research) v. Southam Inc.  In that case, Iacobucci J. made the following comment, distinguishing “unreasonable” from “patently unreasonable”, at para. 57:

The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable….  This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem.

[37]            If a rational basis can be found for the decision, then it should not be disturbed simply because of defects in the tribunal’s reasoning:  see Kovach v. British Columbia (Workers’ Compensation Board) (1998), 52 B.C.L.R. (3d) 98 (C.A.) per Donald J. A., aff’d [2000] 1 S.C.R. 55, 2000 SCC 3.  In Kovach, Mr. Justice Donald said, at para. 26:

[T]he review test must be applied to the result not to the reasons leading to the result.  In other words, if a rational basis can be found for the decision it should not be disturbed simply because of defects in the tribunal’s reasoning.

Should the WCAT Decision be Disturbed?

[38]            As noted earlier, s. 243(3) of the WCA permits the WCAT chair (or designate) to extend the time for filing a notice of appeal if the chair is satisfied that “special circumstances” existed which precluded the filing of a notice of appeal within the specified time period, and if an injustice would otherwise result.

[39]            It is evident from the wording of the statute that the preconditions for granting an extension are conjunctive in nature.  Accordingly, if “special circumstances” are not found to exist, or if no injustice would otherwise result, the statute does not permit the WCAT chair to extend the time for filing.

[40]            Under Item #5.31 of the WCAT Manual of Rules of Practice and Procedure (“MRPP”), “special circumstances” are defined as follows:

Special circumstances must preclude the filing of the appeal on time.  The definition of “special” includes “unusual”, “uncommon”, “exceptional” and “extraordinary”.  In the context of section 243(3), “preclude” does not mean “absolutely prevent”.  It may include “prevent”, “hinder”, “impede”, or “delay” (see WCAT Decision #2003-01810).  In the context of an extension of time application, panels will not consider the merits of the appeal.

The following factors may be considered in deciding whether special circumstances precluded the filing of an appeal on time:

(a)  the date on which the applicant actually received the decision under appeal;

(b)  if there was a delay in receipt of the decision, the reason for the delay (e.g. inaccurately addressed mail, applicant out of town);

(c)  whether the applicant was aware of the right of appeal and the time limit for initiating the appeal;

(d)  whether the applicant has obtained significant evidence which, at the time the decision was issued, either did not exist or existed but was not discovered and could not through the existence of reasonable diligence have been discovered (see WCAT Decision #2004-00433); and,

(e)  whether the applicant took all reasonable steps to ensure a timely appeal.

Additionally, in considering whether acts and omissions of representatives constitute special circumstances that precluded the filing of the appeal on time, WCAT will take into account the following factors (see WCAT Decision #2003-04175):

(a)  whether, within the relevant appeal period, the party instructed a representative to appeal;

(b)  whether the party gave appeal instructions promptly (early in the appeal period);

(c)  whether the party followed up with the representative within the appeal period to ensure that the representative initiated the appeal;

(d)  whether the party was in any way responsible for the delay;

(e)  whether the representative acted as quickly as possible to appeal as soon as the delay was brought to their attention;

(f)   if the party is no longer represented, whether the party acted as quickly as possible to appeal as soon as they became aware of the delay; and

(g)  any other relevant circumstances particular to the case.

[41]            Counsel for Mr. Baldwin identify the key issue for consideration in this application as whether there is any reasonable basis for the decision that there were not unusual circumstances here that hindered or impeded Mr. Baldwin’s pursuit of the appeal.

[42]            In the WCAT decision upon which this appeal is based, the Vice Chair noted:

The WCAT clerk took the worker’s address and sent a letter dated April 27, 2006 to him requesting further information necessary to complete the Act’s notice of appeal requirements.  WCAT gave the worker until May 29, 2006 to submit this information and warned that a failure to do so would result in his being considered out of time.  If this occurred, the worker would need to apply for an extension of time to continue his appeal.

[43]            Although the Vice Chair reviewed the factors that “may be considered in deciding whether special circumstances precluded the filing of an appeal on time” [emphasis added] under Item #5.31 of the MRPP, the Vice Chair made no mention of the additional factors that should be taken into account.  However, I find that having reviewed the Vice Chair’s reasons, although this part of Item #5.31 was not explicitly mentioned, the Vice Chair addressed a number of these points.  WCAT is required to provide reasons for its decisions, pursuant to s. 253(3) of the WCA.  However, I am unaware of any requirement stating that a tribunal must mention every factor that could possibly influence a decision.  In my view, to require endlessly detailed reasons in all situations would ask too much.  Reasons must be sufficient to allow the parties involved to understand the decision-maker’s reasoning and to provide enough information for an appeal, if one is desired, but should not be held to a standard of perfection.  Indeed, there are cases which seem to acknowledge that such perfect reasons are unrealistic: see e.g. Canada (Minister of Justice) v. Mahoney, [2004] O.J. No. 2044 (C.A.) (QL).

[44]            The Vice Chair accepted Mr. Baldwin’s evidence that a WCAT clerk told him the appeal process was started with his telephone call on April 26, 2006, and that Mr. Baldwin received the April 27 letter from WCAT without the notice of appeal forms.  The Vice Chair continued: “Having not appealed to WCAT in the past, I appreciate that under these circumstances the worker would be somewhat confused about the status of his appeal.”  However, the Vice Chair seems to have based his decision in large part on the fact that the letter of April 27, 2006, which Mr. Baldwin did receive, informed him that he was required to submit further information before May 29, 2006 or face having his appeal treated as out of time.  The Vice Chair wrote, “While the worker may have mistakenly believed he had successfully perfected his appeal and was not subject to further filing deadlines, I do not find this belief was reasonable given the wording of the April 27, 2006 letter from WCAT.”

[45]            Although the Vice Chair did not refer to the additional provisions of Item #5.31 which I have quoted, I do not find that his decision to refuse an extension was patently unreasonable.  The Vice Chair laid out the facts and the reasons for his decision.  Regardless of whether the issue is characterized as a dispute over fact, law or exercise of discretion, the Vice Chair’s decision was not patently unreasonable.


[46]            Having found that the WCAT decision of January 9, 2007, was not patently unreasonable, I must dismiss this petition.

“Romilly J.”


The Honourable Mr. Justice S.R. Romilly