Selected Court Decisions

Whether actions lie against registered owner in a WCB related case:

• Munro v. Gibb, [1981] 1 SCR 42
• Tons v. Ewanchuk, (1997) 31 BCLR (3d) 126
• Dyck v. Lohrer, 2000 BCCA 219
• Hoschka v. Nijjar, 2002 BCCA 256

Disclosure:

Napoli v. WCB, [1981] B.C.J. No. 972; (1981) 29 B.C.L.R. 371 (BCCA);  an apparently forgotten ruling that WCB must disclose the entire WCB claim file to appellants.  Currently, disclosures are provided by e-mail.

Purposes of a Compensation System:

The seminal case is Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, [1997] S.C.J. No. 74.  Applied in Kostiuk v. WCAT, 2019 BCSC 363 (Petitioner’s counsel) – see below

Fairness:  

• The seminal case is  Baker v. Canada, [1999] 1 SCR 817.
• Fraser Health Authority v. WCAT, 2014 BCCA 499; unfair process renders entire decision a nullity.  Upheld by SCC:  2016 SCC 25, July 24, 2016.
• Bird v. WCAT, 2023 BCSC 543: WCAT’s reliance on unidentified articles and cases unfair

See also:

• Hommel v. Cooke, 2005 BCSC 658, setting aside WCAT’s decision on the ground that WCAT should have allowed cross examination in an oral hearing.  Also:  Weiss v. WCAT, 2021 BCSC 231.
• Daniel v. WCAT, 2007 BCSC 1005 – appealing in not a refusal to participate in VR process.  (Petitioner’s counsel)
• Baker v. WCAT, 2007 BCSC 1517
• Djakovic v. WCAT, 2010 BCSC 1279 – cross examine Occupational Therapist – let to WCAT accepting aggravation (Petitioner’s counsel)
• Squires v. WCAT, 2011 BCSC 556
• Young v. WCAT, 2011 BCSC 1209 – cross examine VRC (Petitioner’s counsel).  Correctly applied in:  Amos v. WCAT, 2015 BCSC 425; wrongly distinguished in:  Puar v. WCAT, 2015 BCSC 827 (Petitioner’s counsel)

Causation:  the “but for” test:  Clements v. Clements, 2012 SCC 32.  See also:

• Schulmeister v. WCAT, 2007 BCSC 1580
• Chima v. WCAT, 2009 BCSC 1574

Interpretive Tests:  Campbell v. WCB (Sask.), 2012 SKCA 56.  See also:

• Cowburn v. WCB, 2006 BCSC 722 – “recurrence”
• Geronazzo v. WCB, 2006 BCSC 1086 – whether “no evidence”
• Cianelli v. WCB, 2007 BCSC 862 – incorrect burden on worker
• CBC v. Luo & WCAT 2007 BCSC 971 – “employee” under GECA
• Petro-Canada v. WCAT, 2009 BCCA 396 – defining “employer”
• Preast v. WCAT, 2015 BCCA 377 – dividends paid to principal are “earnings for  labour” because he chose to withdraw retained earnings (?).  (Petitioner’s counsel)
• Canada (Immigration) v. Vavilov, [2019] S.C.J. No. 65, December 19, 2019, re-setting standards of review (again)
• Ahluwalia v. WCB, 2021 BCSC 399 – applying Vavilov re: s. 5.1

Section 10:  generally, whether it applies:  Whetung v. WCAT & WCB, 2012 BCSC 475 – upheld: 2013 BCCA 350 – (Petitioner’s counsel)

Section 257:  in which I was counsel:

• Browne v. Aldridge et al, 2013 BCCA 487 – favour not work;
• Baiden v. City of Vancouver, 2010 BCCA 375 – my fees are not taxable; but sleeping chef was not “working” when police woke and beat him 
• Manz v. Sundher, 2009 BCCA 92 – ATA is constitutionally valid in setting time limits and standards of review;  WCAT entitled to determine what is or is not a “hazard” (?)
• Dr. Samer v. Judson, October 3, 2012, Unreported, Vancouver Supreme Court Registry No. S125793, re: fairness right to cross examine doctors.  See WCAT Decisions.
• Gourlay v. Crystal Mountain et al; 2019 BCSC 1134: examples of a stay of civil proceedings pending a WCAT Determination.  WCAT’s decision regarding status is pending;
• Lidder v. WCAT, Victoria Registry 15-1131; Vice Chair agreed to determine whether Lidder was a “worker”;  re-hearing held on November 19, 2019 – decision pending;
• Jammu v. WCAT, Victoria Registry 15-0663; Consent Order setting aside WCAT’s decision and remitting it for re-hearing; set for April 29, 2020;
• Tompai v. WCAT, Victoria Registry 18-3125; Consent Order setting aside WCAT’s decision and remitting it for re-hearing; pending at WCAT;
• Alton v. WCAT & WCB, Victoria Registry 15-4392; whether RD has the jurisdiction to consider lawfulness of policy; whether interest policies are patently unreasonable and/or unreasonable, and/or correct, or unfair.  Pending.
• Bagri v. WCAT, Victoria Registry S17-2766; challenging WCAT’s interpretation of the interest policies and findings of fact.  Pending.
• Bandic v. WCAT, Victoria Registry 16-1885; unfairness; mistaken facts and issues; jurisdiction; effect of previous decisions.  Pending.
• Edwards v. WCAT, Victoria Registry 19-1623; patently unreasonable findings that did not consider aggravations; unfairness in failing to refer to a Health Professional.  Pending.
• Gill v. WCAT, Victoria Registry 15-1801; patently unreasonable findings; relying on un-qualified opinions; challenging policies regarding the “age 65” issue.  Pending.
• Stewart v. WCAT & WCB, Victoria Registry 20-0607; WCAT unfair, and the decision upholding policies regarding the “age 65” issue is patently unreasonable; WCB’s policies and PD’s are unreasonable, and/or unfair, and/or incorrect.  Pending.

See also:

• Hommel v. Cooke, 2005 BCSC 658, setting aside WCAT’s decision on the ground that WCAT should have allowed cross examination in an oral hearing.  Also:  Weiss v. WCAT, 2021 BCSC 231.
• Davidson v. WCB, 2003 BCSC 1147 – even after jury trial
• Hommel v. Cooke, 2005 BCSC 658 – w/ action stayed
• Clapp v. WCAT, 2007 BCSC 840 – only court determines if action barred

patently unreasonable:

• Testa v. WCB 1989 BCCA 2727 – relying on policy without considering broad statutory basis on legislation, resulting in absurd conclusions
• Bagri v. WCAT, 2009 BCSC 300 – not applying expert evidence
• Page v. WCAT, 2009 BCSC 493 – rejection of the only expert opinion
• Srochenski v. WCAT, 2009 BCSC 1488 – applied Page
• Alton v. WCAT, Oral Reasons, Vancouver Registry, May 28, 2012 – when PFI first occurred  – (Petitioner’s counsel)
• Jozipovic v. WCB & WCAT, 2012 BCCA 174 – WCB’s LOE policy p.u.
  – upheld by SCC, November 8, 2012
• McKnight v. WCAT, 2012 BCSC 1820 – parroting Board Medical Advisors is patently unreasonable
• Bandic v. WCAT, 2014 BCCA 490 – WCAT’s interpretation of previous decisions in the claim is not patently unreasonable. (Petitioner’s counsel)  Comment:  parties must challenge WCAT decisions regarding WCAT’s jurisdiction to consider only the issue before the panel.  In this case, a previous WCAT panel found facts regarding matters that were not before WCAT in that appeal, and the court deferred to the panel’s interpretation of it.  The previous WCAT decision is under re-opening on jurisdictional grounds, and is at the Supreme Court on Judicial Review.  (see pending JR’s)
• Fraser Health Authority, supra:  WCAT re-considerations  have no authority to apply common law standards, and must be reviewed by the court on a patently unreasonable standard.  See also:  Pacific Press v. Communications, Energy and Paperworks Union, 2014 BCCA 496.  Comment:  all parties must now file Petitions against all WCAT “original” decisions, and should also apply to WCAT for re-openings of all previous WCAT decisions that applied the common law standard of patent unreasonableness.
• Rutter v. WCAT, 2015 BCSC 862: flawed preference of BMA over Specialist; p.u. neglect in responding to request for IHP.  (Petitioner’s counsel).   Re-hearing resulted in acceptance of left shoulder injury as a compensable consequence:  WCAT-2016-00918.  See also:  Stovicek v. Provincial Health Care Society, 2016 BCSC 227 re: mis-reading of medical reports.
• Puar v. WCAT, 2015 BCSC 827: whether VRC must ask potential employer about specific worker’s restriction and limitations, per: Young & Amos;  at CA.  (Petitioner’s counsel)
• Shamji v. WCAT, 2016 BCSC 1352: whether a determination of an exact calculation of a loss of earnings entitlement can be re-adjudicated four times – yes!?  (Petitioner’s counsel) – upheld in Shamji v. WCAT, 2018 BCCA 73, giving WCAT wide powers.  [What is the nature of a “fact”?]
• M.V. v. WCAT, 2016 BCSC 1497: fallacious reasoning in preferring Dr. Samer’s opinion over that of a Psychiatrist who examined the worker; accepts re-opening.  See also WCAT:  A1603299.
• M.V. v. WCAT, 2016 BCSC 1507: grounds for using initials and sealing the court file.
• Lockyer-Kash v. WCB & WCAT, 2016 BCSC 2435: interest “blatant error” policy not unreasonable.  Upheld at BCCA; appeal filed at SCC
• Bodman v. WCB & WCAT, 2016 BCSC 2436: “age 65” policy and practice directives not unreasonable; but WCAT process was unfair in failing to gather evidence from employer – WCAT directed to do so.  (Petitioner’s counsel. (see below, pending JR’s)
• Kostiuk v. WCAT, 2019 BCSC 363: instructive decision regarding aggravation of pre-existing conditions; applied the four principles of a compensation system per: Pasiechnyk (above) (Petitioner’s counsel)

• T.B. v. WCAT, 2021 BCSC 610: reasons WCAT provided for preferring the first doctor’s opinion were not supportable by the facts in the record. The Court found that WCAT made an incorrect finding of fact, ignored certain evidence, and unreasonably concluded that a doctor did not review relevant medical records. 

   

Miscellaneous:

• Burnett v. WCB, 2003 BCCA 394 – no age discrimination with respect to widows
• Review Reference R17297, May 3, 2004 – VRC should be changed; WCAT-2004-03598 results in 100% pension – (Worker’s counsel)
• Jones v. WCAT, 2005 BCCA 458 – MRP can opine about employability; upheld by SCC, March 30, 2006
• G.D. v. Centre de Sante, 2008 J.Q. 2747 – defamation not out of employment
• Nazmdeh v. Spraggs, 2010 BCCA 131: costs against counsel
• Review Division #R0119660: dog culling caused mental stress (Removed from website, copy available)
• Kerton v. WCB & WCAT, 2011 BCCA 7 – virtually unlimited “residual discretion” re: EOT – (Petitioner’s counsel)
  see also: Lysohirka v. WCB, 2012 BCCA 457 –  upheld: 2013 CanLII 26759 (SCC), May 16, 2013 – (Petitioner’s counsel at CA); and also in Fraser Health, supra.
• Jim Pattison v. WCB, 2011 BCCA 35 – upholds Fed-Prov agreement
• Powell Estates v. WCB, 2011 BCSC 1036 – action for misfeasance
• WCB v. Figliola, 2011 SCC 52 – concurrent jurisdiction and abuse of process
• Whetung v. WCAT & WCB, 2013 BCCA 350 – no subrogation re: unrelated tort action –  WCB had no authority to take away worker’s pension;  costs to the worker throughout.  (Petitioner’s counsel)
• Demings v. WCB & WCAT, 2012 BCSC 475 – no action against previous boards (before the amendments)
• WCB v. Moore, 2012 BCSC 109 – Respondent in contempt
• Singh v. Soper, 2012 BCSC 1312 – economic losses not barred – overturned: 2017 BCCA 355.
• Aitken v. Minister of Public Safety, 2013 BCCA 291 – no action against RCMP officers
• Davis v. WCB & WCAT, 2013 BCSC 476 – WCAT can apply CL to re-cons  –  now overturned by Fraser Health, supra
• Erskine v. WCAT, 2014 BCCA 96; the CA’s standard or review of a SC Judicial Review is correctness.  Also confirmed duty to investigate per: Item #97.00;  see also Skrepetz v. WCAT, 2015 BCSC 2458.
• Denton v. WCAT, 2016 BCSC 1219: must challenge Charter and Constitution questions at Review Division.
• Goik v WCAT, 2017 BCSC 1756: misstating issues, failing to address issues raised.
• Langille v. CVAP & WCB, 2017 BCSC 2241: totally disabled workers beware of this curious decision that denies a functional pension to a totally disabled, brain damaged, baby on the grounds that “… a person can be totally disabled without that disability [brain damage] being permanent … Ms Johnson [WCB] ultimately concluded that Ms Langille was not entitled to a [sec. 22(2) mandatory minimum] pension for the period starting at the time of injury (when she was an infant), but she was eligible for a pension starting at the time when she would have reasonably expected to begin her working career”, which has nothing to do with a plateau date, and which was never decided by WCB in spite of several contemporaneous medical opinions that concluded that Ms Langille’s brain damage was permanent. (Petitioner’s counsel)
• Edwards v. WCAT, 2023 BCSC 1277, July 25, 2023.  Instructive decision by Justice Saunders.  Several WCAT conclusions found to be patently unreasonable, with succinct reasons.  (Petitioner’s Counsel)

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Class Proceedings:

–   Lockyer-Kash v. British Columbia (Workers’ Compensation Board), 2014 BCSC 1443:  appeal at SCC,  abandoned, leaving the Court of Appeal’s decision standing.

 –   Beveridge and Smith v. WCB, 2014 BCSC 2145 – workers must appeal WCB decisions re: “excess” –  Comment:  this is a marked departure from practice and all Review Division and WCAT decisions to date.  Parties must now internally appeal all WCB decisions re: “excess”  (Petitioners’ co-counsel with Drew Schroeder)