[2011] B.C.J. No. 14

2011 BCCA 7

British Columbia Court of Appeal

L.S.G. Finch C.J.B.C., P.A. Kirkpatrick and H. Groberman JJ.A.

January 10, 2011

The Appellants (the Workers' Compensation Appeal Tribunal and the Workers' Compensation Board) brought this appeal from an order of the Supreme Court, which granted judicial review of the Tribunal's decisions. Those decisions involved denials of the injured worker's (Kerton) request for an extension of time to file an appeal. Kerton had injured his left leg and knee at work in 1991 and received compensation from the Board. In 2005, he was experiencing ongoing difficulties and the Board re-opened his claim. The Board determined Kerton's average net earnings on June 10, 2005 and this determination was confirmed on December 19, 2005.

Kerton filed an appeal (with the Tribunal) of the December 19, 2005 decision but it was approximately 186 days late. The Tribunal is permitted to extend the time for the filing of a notice of appeal if two conditions are met. There must be special circumstances which precluded the filing within the time period required and an injustice would result if an extension was refused. The Tribunal determined in October 2006, that Kerton's requests for an extension should be denied. In a subsequent decision in January 2008, Kerton's request for a reconsideration was denied. Therefore, Kerton was denied his intended appeal.

The first review decision of the Tribunal found that Kerton satisfied both statutory requirements but the Tribunal nevertheless refused an extension on the basis that he failed to sufficiently explain the delay in bringing the appeal. In the second review decision (in January 2008), the Tribunal held the earlier decision was to be reviewed on a standard of patent unreasonableness and further concluded that the Tribunal's conclusion had been correct in any event.

Kerton brought an application for judicial review in the Supreme Court. The judge considered the applicable standard of review to be correctness. He identified the nature of the question at issue to be a mix of jurisdictional and non-jurisdictional questions; namely, whether the Tribunal has a residual discretionary power to extend the time to appeal (a jurisdictional question) and when that power should be exercised (not a jurisdictional question).

The judge referred to the language in section 243(3) of the Workers' Compensation Act where it states that "the chair may extend the time to file a notice of appeal" if the two conditions are met. He concluded that the word "may" should be construed as imperative in circumstances where the two statutory criteria are met.

The judge concluded that the second review decision was incorrect about the standard of review. The judge referred the matter back to the Tribunal for reconsideration. The Appellants sought to overturn the judge's finding regarding the applicable standard of review.

The Court of Appeal found that the judge had mischaracterized the issue as a question of jurisdiction and therefore came to the wrong conclusion. The Court was required to determine whether the privative clause covers the "matters" in issue. The Court of Appeal then referred to section 254 of the Workers' Compensation Act wherein the Tribunal is given 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…." The Court of Appeal then concluded that the issue of an extension under section 243(3) was a matter covered by the privative clause. Therefore, the applicable standard of review is patent unreasonableness and the Tribunal's decisions were well within the range of interpretive options and not patently unreasonable.

The Court of Appeal allowed the appeals from the order of the Supreme Court.