Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49

The British Columbia Court of Appeal considered whether a judicial review application was premature where the tribunal determined it should not dismiss human rights complaint summarily but the tribunal had not yet considered the merits of the complaint.

The applicant complained that she was not reappointed as a Workers’ Compensation Appeals Tribunal ("WCAT") vice-chair based on her age. WCAT said that the decision was made based on two factors: a merit based review imposed by the statute and the tribunal’s needs. A WCAT employee explained the decision to the applicant. He told the applicant that WCAT would attempt to offer her short term work to allow her to reach pensionable age. In response to the applicant’s human rights complaint, WCAT applied to have the complaint dismissed without a hearing on the basis that it had no reasonable possibility of success. To withstand a summary dismissal, the applicant must establish that there is some evidence of discrimination. The Human Rights Tribunal ("HRT") relied on the applicant’s affidavit in which she said that the WCAT employee told her that the decision was made based on her age. It dismissed WCAT’s application.

WCAT sought judicial review of the HRT’s decision, and the chambers judge reversed the decision. She held that the judicial review application was not premature. The judge concluded that the HRT misread the evidence which led to a patently unreasonable decision. The applicant’s only “evidence” is the fact that she had understood the WCAT employee to have said that the decision was related to her age; however, it was clear that the statement was made in respect of a discussion about pension not as a justification for not reappointing her.

The applicant and the HRT appealed. The court held that the application for judicial review was not premature. Judicial review of a decision not to dismiss the complaint on a summary basis must be available to both parties. A judicial review after the tribunal hears the case on its merits would not be useful to the party seeking to dispose of the application summarily.

Note: The court also raised a concern not expressed by any of the parties. As a matter of course, the HRT as the decision maker should not be permitted to appeal. If the matter is remitted, there would be impartiality concerns and a reasonable apprehension of bias. As no party raised the issue, the court permitted the appeal to go forward but made clear that this is not a proper practice to be accepted by the courts.

February 7, 2011
Link to Decision

Julia Wilkes
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