Gogol v. Workers' Compensation Appeal Tribunal,


2008 BCSC 489

Date: 20080422
Docket: S080431
Registry: Vancouver


Dean Gogol



Workers’ Compensation Appeal Tribunal and Yard Hostler Services Inc.


Before: The Honourable Mr. Justice Nathan Smith

Reasons for Judgment

(In Chambers)

Counsel for the Petitioner

Gib Van Ert

Counsel for the Respondent
Workers’ Compensation Appeal Tribunal

Walter A. Pylypchuk


Date and Place of Hearing:

March 28, 2008


Vancouver, B.C.


[1]                The petitioner seeks judicial review of a decision by the Workers Compensation Appeal Tribunal (WCAT) that denied him temporary disability benefits.  The petitioner was injured on what was to have been his last day of work before being laid off by his employer.  WCAT determined that he was not entitled to wage loss benefits in those circumstances because there was insufficient evidence that he had suffered any actual or potential wage loss.


[2]                The petitioner’s injury occurred on December 1, 2005.  He applied to the Workers’ Compensation Board for benefits and was told on December 12, 2005 that his claim had been accepted for health care benefits, but denied for income loss benefits.  The board entitlement officer concluded that, because of the layoff, there was no work for the petitioner to return to and he had, therefore, lost no time at work because of his injury.  On being advised of that decision, the petitioner told the board officer that he (the petitioner) would have to claim Employment Insurance benefits.

[3]                The entitlement officer’s decision was clearly not a correct application of the board’s policy.  The board’s Claims Manual addresses this situation and refers to both actual loss and potential loss:

In situations where there is a lay-off due to lack of work, a worker would normally be considered as having suffered a potential loss…The general expectation in those situations is that the worker would, if not injured, have immediately sought new employment, and the Board should not speculate as to if and when it would have been found.  If however, there is evidence to rebut this general expectation, the Board may conclude in a particular situation that there was no actual or potential loss.

[Emphasis added] 

[4]                The petitioner appealed to the Review Division of the Board.  In a decision dated March 24, 2006, the review officer denied the appeal, stating that there was “insufficient evidence to conclude that the worker would, if not injured, have immediately sought new employment.”

[5]                That decision was appealed to WCAT.  In support of his appeal, the petitioner filed a letter from the president of his union local which stated, in part:

If Dean had been available, the union would have sent him out to work.  We had jobs available that Dean had the skill and ability to perform. 

[6]                The letter went on to list specific jobs it said were available at the time, giving the date each job was available and the name of the employer.  The earliest date listed was December 6, 2005.  One of the openings listed was for a forklift driver and four others were for “forklift/shipper.”  The letter added:

As well, there were numerous jobs available throughout January and February in the Display Industry (where Dean is currently working), setting up and dismantling trade shows. 

[7]                WCAT dismissed the petitioner’s appeal in Reasons dated June 5, 2007.  The presiding vice-chair of the appeal tribunal noted that the petitioner had twice told the entitlement officer that he would “have to go to EI” and did not, in either conversation, indicate that he would be seeking or obtaining alternate work through the union.  She concluded: 

I have reviewed the representative’s letter of April 24, 2006 and I find it somewhat ambiguous.  The representative has not clearly indicated what kind of “jobs”, or more importantly, when such work was available which the “union would have sent him out to work”.  The representative also stated there were jobs available in “our shops”.  He indicated these positions were as a forklift driver and forklift/shipper.  The worker was employed as a truck driver at the time of his injury not a forklift operator or a shipper.  I do not find the letter to clearly state the worker had the specific qualifications to work in these positions as of December 2, 2005.  Moreover, the representative stated the worker had subsequently been employed setting and dismantling trade shows.  There is no indication that this work is similar to forklift operation and/or shipping work. 

I am not persuaded the representative’s letter indicates the worker would have had employment immediately following December 1, 2005.  This information was not provided until a very significant amount of time after the worker’s injury and after the first level of appeal.  I prefer the employment information closer in time to the actual injury.  As noted above, the worker stated twice that he would seek EI benefits.  I do not find sufficient evidence to conclude he would have sought employment through his union immediately after the incident.  I find it more likely based on the information on file, that he, in addition to numerous other workers, was subject to a layoff effective December 2, 2005 due to economic conditions.  This rebuts the general expectation that the worker would, if not injured, have had immediate new employment. 


[8]                The first issue is whether the court should consider this application, which was filed after expiry of the applicable time limit.  Section 57 of the Administrative Tribunals Act, R.S.B.C. 2004, c. 45, requires an application for judicial review to be filed within 60 days of the tribunal’s decision and the petition in this matter was filed well outside that period.  However, s. 57(2) of the Act allows the court to extend the time for filing if “there are serious grounds for relief, there is a reasonable explanation for the delay and no substantial prejudice or hardship will result.”

[9]                In this case, counsel for WCAT concedes there is no prejudice and takes no position on the application for an extension of time.  The evidence shows that the petitioner made clear almost immediately after receiving the WCAT decision that he wished to challenge it, but he told the board that he wanted to appeal instead of filing a petition for judicial review by the court.  It appears that the petitioner and the union representatives advising him at that time were confused about the appellate structure, which was extensively changed by amendments to the Workers Compensation Act in 2003, and were attempting to comply with the former system.  Counsel for WCAT concedes that such confusion has not been uncommon since the new legislation was enacted.  In the circumstances, I find the requirements of s.57(2) have been satisfied and the extension of time is granted.  


[10]            On any application for judicial review of a decision by a statutory tribunal, the first task is to identify the applicable standard of review.  In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada made clear that an exhaustive review is not necessary in every case to determine the standard of review and that the court can rely on existing jurisprudence (at  para. 57)

[11]            There is no dispute that the WCAT decision at issue is subject to s. 58 of the Administrative Tribunals Act and particularly ss. (1) and (2)(a), which read as follows:

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 …

[12]            Hill v. WCB, 2007 BCSC 1187, and Baldwin v. Workers’ Compensation Appeal Tribunal, 2007 BCSC 942, are recent examples of cases where this Court has confirmed that s. 58 and the review standard of patent unreasonableness applies to a WCAT decision such as the one now at issue.

[13]            When the Administrative Tribunals Act was enacted, the common law provided three possible standards of judicial review:  correctness, reasonableness and patent unreasonableness.  Patent unreasonableness, the standard requiring the court to show the highest degree of deference to the tribunal, was defined by the Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance, [1993] 1 S.C.R. 941:

46        It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational. 

[14]            In Kovach v. British Columbia, [2000] 1 S.C.R. SS, the Supreme Court of Canada adopted the dissenting judgment of Donald J.A. in the Court of Appeal, who wrote at [1999] 52 B.C.L.R. (3d) 98, [1999] 1 W.W.R. 498 at 512:

I think that the review test must be applied to the result, not 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.  

[15]            The difference between “reasonable” and “patently unreasonable” was explained by the Supreme Court of Canada in Canada v. Southam, [1997] 1 S.C.R. 748:

57        The difference between “unreasonable” and “patently unreasonable” lies in the immediacy of 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. 

[16]            Most recently, in Dunsmuir, supra, the Supreme Court of Canada decided that the distinction between “unreasonable” and “patently unreasonable” has proven to be difficult to apply in practice, and combined those two standards into a single standard of review based on reasonableness (at para. 47):

A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 

[17]            Counsel for WCAT submits that the new combined standard set out in Dunsmuir does not apply when, as here, there is a legislated standard of patent unreasonableness.  He submits that I am not bound by Howe v. 3770010 Canada Inc., 2008 BCSC 330, where this Court applied the standard of reasonableness as defined in Dunsmuir, in a situation governed by s. 57(2)(a) of the Administrative Tribunals Act.  Counsel says that Dunsmuir was decided while Howe was apparently under reserve and that the question of whether Dunsmuir has any impact in the face of a statutory standard does not appear to have been fully argued.  The point was not fully argued before me either, and I do not need to decide it because counsel for the petitioner is content to rely on pre-Dunsmuir tests for patent unreasonableness. 


[18]            The petitioner was injured just before he was to be laid off.  The issue before WCAT was whether he would have had the opportunity for other employment if he had not been injured.  It is often difficult to prove what would or would not have happened in circumstances that never existed.  That difficulty is recognized in the board policy quoted above which, in effect, creates a rebuttable presumption in favour of the injured worker.

[19]            By operation of s. 250(2) of the Workers Compensation Act, R.S.B.C. 1996, c. 492, that policy was binding on WCAT.  That section reads:

250(2)  The appeal tribunal must make its decision based on the merits and justice of the case, but in so doing the appeal tribunal must apply a policy of the board of directors that is applicable in that case. 

[20]            WCAT was also bound by s. 250 (4) which reads:

250(4)  If the appeal tribunal is hearing an appeal respecting the compensation of a worker and the evidence supporting different findings on an issue is evenly weighed in that case, the appeal tribunal must resolve that issue in a manner that favours the worker. 

[21]            The combined effect of the board policy and s. 250 is that there was no onus on the petitioner to prove actual or potential income loss.  Under the governing legislation and policy, it was open to WCAT to reject the petitioner’s claim only if there was some evidence that the petitioner, if he had not been injured, would not have sought or obtained other work.  Such evidence would displace the presumption in the petitioner’s favour and would have to be weighed against evidence that the petitioner provided in the form of the union letter. 

[22]            The question before me then is whether there was any evidence from which it was possible to conclude that the petitioner, if he had not been injured, would not have sought other employment after he was laid off.  If there was any such evidence, the decision cannot be said to be patently unreasonable merely because the court takes a different view of it or would have reached a different conclusion. However, I find there was no such evidence before WCAT.

[23]            WCAT rejected the evidence from the union and purported to prefer “the information closer to the time.” That evidence was that the petitioner had twice said he would claim employment insurance, but those statements were made in the context of the petitioner having suffered an injury, being unable to work and being told that he was not eligible for WCB benefits.  In that situation, the petitioner had no alternative but to pursue the next available source of replacement income.  The question before the tribunal was not what the petitioner was going to do in the circumstances that existed at the time, but what he would have done if he had not been injured.   There is nothing in the petitioner’s statements, or the circumstances in which he made them, that could reasonably be interpreted as addressing that hypothetical situation.

[24]            In my view, the record discloses no rational basis for WCAT's conclusion.  It reversed the applicable burden of proof and, in effect, required the petitioner to prove that he would have sought alternate employment if he had not been injured.  It then rejected the evidence the petitioner provided on that point when there was no evidence to the contrary.  In both respects, I find that the decision was patently unreasonable and the matter is remitted to WCAT for reconsideration.  


Mr. Justice Nathan H. Smith