WorkSafeBC and Judicial Review

  • April 01, 2019
  • Ben Parkin

The Workers’ Compensation Board of British Columbia (“WorkSafeBC” or “Board”) occupies a curious place in administrative law. Although the Board issues a high volume of administrative decisions, it is rarely the proper respondent in a judicial review application. This is because the vast majority of Board decisions are subject to statutory review before the Board’s Review Division, and then appeal to the independent Workers’ Compensation Appeal Tribunal (“WCAT”). Once WCAT issues a decision, the proper object of judicial review is that WCAT decision. There are, therefore, only a limited number of situations when the Board is a proper respondent to an application for judicial review.

The Workers Compensation Act (“WCA” or “Act”) sets out some situations where a Board decision is not subject to the internal appeal regime and could therefore be directly judicially reviewed: see, for example, ss. 96.2(2) dealing with certain Board orders that are not subject to review at the Review Division and 239(2) setting out certain Review Division decisions that are not appealable to WCAT.

Other situations where the Board is directly the subject of judicial review might be less obvious.

The Board has the ability to make regulations relating to occupational health and safety under s. 225 of the Act. This means that a challenge to the validity of a provision in the Occupational Health and Safety Regulation (“OHSR”) will usually be defended by the Board rather than the Attorney General. That is precisely what happened in West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22.

The Board had imposed an administrative penalty on an employer who breached a particular OHSR provision. In the judicial review of the WCAT decision, the Board was added as a proper party to defend the vires of the impugned regulation.

A second example is where a party challenges the reasonableness of published policies of the Board’s board of directors.

The Act makes the Board’s policies binding on the Board’s decision makers (s. 99(2)) and on WCAT (s. 250(2)). In order to challenge a policy, an applicant must first follow the procedure set out in s. 251 of the Act, which involves the WCAT vice chair and chair referring the policy to the Board’s board of directors for consideration and stakeholder input.

Although the Court of Appeal has criticized the complexity of this procedure, the court ultimately deferred to the legislature’s wisdom in enacting it and requires applicants to follow it before they will be allowed to challenge the policy on a judicial review: Johnson v. British Columbia (Workers’ Compensation Board), 2011 BCCA 255; Bodman v. Workers’ Compensation Appeal Tribunal, 2016 BCSC 2436.

Once the board of directors has considered the policy, if it is not set aside then a challenger may take the policy to court on judicial review: Lockyer-Kash v. British Columbia (Worker’s Compensation Board), 2016 BCSC 2435.

Finally, there may be situations where the Board is a respondent in a judicial review proceeding although the Board decision has been subsumed by a WCAT decision that is under judicial review. The Board may be involved in order to provide context to the decision and information about the administration of the statutory scheme. An example of this is the case of Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCCA 387 where the chambers judge found the Board had limited standing to address the above issues.

In summary, the Board has a limited role in judicial review of administrative decisions, most commonly to defend the vires of a regulation or the reasonableness of a board of director’s policy. The day to day claims decisions made by the Board are not subject to judicial review, since they are dealt with through the statutory appeal process.

Ben Parkin, Barrister and Solicitor, Director, Legal Services – Litigation, WorkSafeBC.