Case In Point
B.C. Supreme Court Imposes Costs on Workers’ Compensation Appeal Tribunal for Procedural Fairness Breaches, Deviating from the “Traditional Immunity” Enjoyed by Decision-Makers
Date: March 17, 2025
In an unusual decision, the Supreme Court of British Columbia has awarded costs against the British Columbia Workers’ Compensation Appeal Tribunal (WCAT) following a successful judicial review application. The award rendered in J.T. v. British Columbia (Workers’ Compensation Appeal Tribunal) signals a significant departure from the general principle that tribunals enjoy immunity from costs awards when their decisions are overturned.
Background
The applicant, identified only as J.T., had sought judicial review of a prior WCAT decision in which he was denied his claim for compensation for mental disorder allegedly caused by workplace stressors. Justice Lyster, who presided over the judicial review, deemed J.T. successful, setting aside WCAT’s decision and remitting the matter for a new oral hearing. In her decision, Justice Lyster found two significant errors in WCAT’s handling of J.T.’s case:
- WCAT had improperly relied on Dr. Pappas’ opinion on causation despite the doctor having incomplete and inaccurate information about the applicant’s work-related stressors.
- Given the critical importance of this medical evidence, WCAT’s failure to either request further investigation or retain a health professional to conduct an updated assessment constituted a patently unreasonable exercise of discretion.
The Court held that the second error could alternatively be framed as a breach of procedural fairness. Given that J.T. was entirely dependent on WCAT to request that the medical assessor review all workplace incidents (as Dr. Pappas declined to consider them without a formal request from WCAT), the tribunal owed J.T. a high level of procedural fairness. WCAT breached this duty by failing to ensure it had a psychological assessment based on a complete and accurate record.
The Court identified a second breach of procedural fairness in WCAT’s handling of the hearing when the vice chair proceeded with the appeal despite being aware that J.T. had not received an essential letter dated December 13, 2021, which outlined the evidence to be considered.
The Court’s Analysis
Subsequent to the successful judicial review, J.T. pursued costs against WCAT, seeking either special costs or costs at Scale C, which are normally awarded in matters of more than ordinary difficulty. WCAT contested any award of costs, asserting that tribunals traditionally enjoy an immunity from costs being awarded against them on judicial review of their decisions.
In her analysis, Justice Lyster reviewed the leading authorities on costs against tribunals, specifically the Court of Appeal decisions in Lang v. British Columbia (Superintendent of Motor Vehicles) and 18320 Holding Inc. v. Thibeau. These cases established that tribunals are generally immune from costs awards, except in either of two situations:
- when the tribunal has demonstrated “misconduct or perversity in the proceedings before the tribunal”
- when the tribunal improperly argued the merits of the judicial review application before the Court
J.T. stated that WCAT’s actions, particularly the procedural fairness issues, provided adequate grounds to challenge the usual immunity and warranted an award of costs. J.T. argued that the nature and impact of these breaches on a vulnerable applicant with a mental disorder justified either special costs or higher costs at Scale C. WCAT, on the other hand, asserted that its actions did not reach the level of “misconduct or perversity” necessary to justify deviating from the traditional rule.
WCAT highlighted that it had been subject to cost awards only once before, in the 2009 case of Bagri v. British Columbia (Workers’ Compensation Appeal Tribunal), since its inception. WCAT contended that the errors identified in the present case were less significant than those in Bagri.
After consideration of the circumstances, Justice Lyster concluded that the two identified breaches of procedural fairness were, when considered together, sufficiently significant to warrant costs against WCAT. The Court emphasized that WCAT, as a quasi-judicial tribunal, owes parties a high level of procedural fairness, particularly when dealing with vulnerable applicants claiming mental disorders caused by workplace stressors.
The Costs Decision
The Court awarded J.T. costs at Scale B, noting that the matter was of ordinary difficulty, and a fairly typical judicial review of an administrative tribunal’s decision. It rejected J.T.’s claim for special costs and the alternative claim for Scale C costs. Justice Lyster found no reprehensible conduct by WCAT during the Court proceedings that would justify punitive special costs, noting that pre-litigation conduct cannot form the basis for such an award.
The Court also declined to award elevated costs at Scale C, finding that despite J.T.’s difficulty in self-representation, the case was “a fairly typical judicial review of an administrative tribunal’s decision” without extraordinary complexity.
Key Takeaways
The Court’s ruling underscores the importance of procedural fairness in administrative tribunal proceedings, especially when dealing with vulnerable applicants.
Many employers experience frustration with the claims-management methods used by various workers’ compensation boards. While awards of costs or other financial liability are unlikely in most circumstances, don’t hesitate to reach out to your regular Hicks Morley lawyer to discuss other strategies for cost mitigation.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
