An appeal of the lower court decision to dismiss a judicial review petition due to failure to file on time is dismissed.

Denton v. British Columbia (Workers’ Compensation Appeal Tribunal), [2017] B.C.J. No. 2348, 2017 BCCA 403, British Columbia Court of Appeal, November 23, 2017, E.A. Bennett, D.C. Harris, J.E.D. Savage JJ.A.

Ms. Denton, the appellant, had left work due to depression and anxiety. She claimed for compensation from the Worker’s Compensation Board. The Board denied her claim by finding that her mental stress was related to employer decisions concerning reorganization, workload and working conditions, which forms an exception to the compensation for mental disability claims. Ms. Denton appealed to the Board’s Review Division. The Review Division dismissed, as there was not traumatic event or significant stressor as required by the Act and concomitant Policy.

Ms. Denton then appealed to the Workers’ Compensation Appeal Tribunal (WCAT), which denied her claim. She first made constitutionality arguments here, although WCAT is barred from considering the constitutionality of a law under the Charter. WCAT acknowledged that Ms. Denton had a mental disorder, but dismissed her appeal because her workplace stressors were not “significant” per the Act, and because the stressors related to employer decisions. She then petitioned for judicial review, but did so seven months past the 60 day deadline for doing so. She sought to introduce constitutional questions. The BCSC refused the petition, holding that a reasonable explanation for the delay had not been provided, and that constitutional issues were raised too late in the appeal process. The appellant then appealed to the BC Court of Appeal.

The appellant argued that the lower court judge failed to give any or sufficient weight to relevant factors and reached an unreasonable result in fact and law. Specifically, she argued the Court failed to consider what the impact would be, both on her and on WCAT, of proceeding despite the delay. Ms. Denton relied upon her union, the BC Nurses Union, which was undergoing a change in strategy with respect to launching judicial review petitions that took five months.

The Court of Appeal held that the lower court judge accurately apprehended the evidence in relation to these arguments. The Court held that it could not interfere with the judge’s findings that in spite of the changes in the law and subsequent change in strategy of the BCNU, accepting the delay would render the legislative time limit meaningless and would undermine the Legislature’s intent to promote prompt applications for judicial review. The lower court judge further held that Ms. Denton had been advised of the time limitation, and so could not put forth reliance on counsel as reasonable explanation for the delay. The Court held there was no basis to interfere with the lower court’s exercise of discretion.

On the question of constitutional issues, the Court of Appeal again held that the lower court judge carefully considered the issue, recognizing that judicial review is not a hearing de novo, and went on to consider that raising constitutional issues for the first time on judicial review may circumvent the legislative intent to grant the Board’s Review Division the jurisdiction to hear Charter issues on first instance. Information about constitutional and human rights challenges before the Review Division was posted online at the time of Ms. Denton’s appeal. The Court reiterated that courts should be reluctant to ignore the Legislature’s intent to allow the Review Division to decide constitutional issues. Declining to allow Ms. Denton to advance a constitutional argument for the first time on judicial review coheres with the court’s preferred approach to encourage a full factual context and developed record be put before the decision-maker of first instance, so that the reviewing court may have the benefit of the tribunal’s views on the full factual record. The Court found no basis to interfere with the lower court’s findings and hence dismissed the appeal.